(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "North Carolina Register v.8 no. 8 (7/15/1993)"

RBfc/I^FM /7434-/.A 2 /^7 



RECEIVED 



ML 19 



1993 



U W LIBRARY 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 



PROPOSED RULES 

Environment, Health, and Natural Resources 

Foresters, Registration for 

Human Resources 

Insurance 

Transportation 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: July 15, 1993 



Volume 8 • Issue 8 • Pages 641 - 708 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



I 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1. pages 1f M through 201 of the North Carolina 
Register issued on April 1, 1 986. 



4 



FOR INFORMATION 


CONTACT 




Office 


of 


Administrate 


e Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447. 


Raleigh, North Carolina 


27611 


-7447. 


(919) 


733-2678. 















i 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 17-18 



641 



II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Environmental Management .... 658 

Wildlife Resources 663 

Human Resources 

Medical Care Commission 644 

Services for the Deaf and 

Hard of Hearing 650 

Insurance 

Actuarial Services 657 

Licensing Board 

Foresters, Registration for 674 

Transportation 

Highways, Division of 669 

III. RRC OBJECTIONS 676 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 681 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 682 

Text of Selected Decisions 
92 DHR 1 109 687 

VI. CUMULATIVE INDEX 707 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1993 - December 1993) 







Last Day 


Earliest 


Earliest 










for Elec- 


Date for 


Date for 


Last Day 


*Earliest 


Issue 


Last Day 


tronic 


Public 


Adoption 


to Submit 


Effective 


Date 


for Filing 


Filing 


Hearing 


by Agency 


to RRC 


Date 


=< :< Jfi M =< =< =« 


******* 


* * **>i< # * 


******* 


=<>;>: 3-: >= >■; ^ 


]|Cl|t>|E3{(^^^ 


sje >}« sj« >je ife sje a|e 


01/04/93 


12/09/92 


12/16/92 


01/19/93 


02/03/93 


02/20/93 


04/01/93 


01/15/93 


12/22/92 


12/31/92 


01/30/93 


02/14/93 


02/20/93 


04/01/93 


02/01/93 


01/08/93 


01/15/93 


02/16/93 


03/03/93 


03/20/93 


05/03/93 


02/15/93 


01/25/93 


02/01/93 


03/02/93 


03/17/93 


03/20/93 


05/03/93 


03/01/93 


02/08/93 


02/15/93 


03/16/93 


03/31/93 


04/20/93 


06/01/93 


03/15/93 


02/22/93 


03/01/93 


03/30/93 


04/14/93 


04/20/93 


06/01/93 


04/01/93 


03/11/93 


03/18/93 


04/16/93 


05/01/93 


05/20/93 


07/01/93 


04/15/93 


03/24/93 


03/31/93 


04/30/93 


05/15/93 


05/20/93 


07/01/93 


05/03/93 


04/12/93 


04/19/93 


05/18/93 


06/02/93 


06/20/93 


08/02/93 


05/14/93 


04/23/93 


04/30/93 


05/29/93 


06/13/93 


06/20/93 


08/02/93 


06/01/93 


05/10/93 


05/17/93 


06/16/93 


07/01/93 


07/20/93 


09/01/93 


06/15/93 


05/24/93 


06/01/93 


06/30/93 


07/15/93 


07/20/93 


09/01/93 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


07/31/93 


08/20/93 


10/01/93 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/14/93 


08/20/93 


10/01/93 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


10/01/93 


09/10/93 


09/17/93 


10/16/93 


10/31/93 


11/20/93 


01/04/94 


10/15/93 


09/24/93 


10/01/93 


10/30/93 


11/14/93 


11/20/93 


01/04/94 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


12/31/93 


01/20/94 


03/01/94 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 



* Tfie "Earliest Effective Date" is computed assuming that the agency follows the 
publication schedule above, that the Rules Review Commission approves the rule at 
the next calendar month meeting after submission, and that RRC delivers the rule to 
the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 17 

NORTH CAROLINA EMERGENCY 

RESPONSE COMMISSION 



Manager, Training/Standards Program, Fire and 
Rescue Services Division, Department of Insur- 
ance; 



WHEREAS, the Emergency Planning and Com- 
munity Right-to-know Act of 1986 enacted by the 
United States Congress, requires the Governor of 
each state to appoint a State Emergency Response 
Commission. 

NOW THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Section 1. Creation. 



Chief, Emergency Medical Services, Division of 
Facility Services, Department of Human Resourc- 
es; and 

Six at-large members from local government and 
private industry with technical expertise in the 
emergency response field may be appointed by the 
Governor and serve for terms of two (2) years at 
the pleasure of the Governor. 

Section 2. Duties. 



There is created the North Carolina Emergency 
Response Commission, hereinafter referred to as 
the "Commission." The Commission shall consist 
of not less than eleven members and shall be 
composed of at least the following persons: 

Director, Division of Emergency Management, 
Department of Crime Control and Public Safety, 
who shall serve as Chairperson. 

Coordinator, State Highway Patrol Hazardous 
Materials, Department of Crime Control and 
Public Safety; 

Safety Director, Department of Agriculture; 

Supervisor, Facilities Assessment Unit, Division 
of Environmental Management, Department of 
Environment, Health and Natural Resources; 



The Commission is designated as the State 
Emergency Response Commission as described in 
the Act and shall perform all duties required of it 
under the Act, including, but not limited to, the 
following: 

(a) Appoint local emergency planning commit- 
tees described under Section 301(c) of the Act and 
supervise and coordinate the activities of such 
committees. 

(b) Establish procedures for reviewing and 
processing requests from the public for information 
under Section 324 of the Act. 

(c) Designate emergency planning districts to 
facilitate preparation and implementation of emer- 
gency plans as required under Section 301(b) of 
the Act. 



Director, Solid Waste Management Division, 
Department of Environment, Health and Natural 
Resources; 



(d) After public notice and opportunity for 
comment, designate additional facilities that may 
be subject to the Act under Section 302 of the Act. 



Director, Radiation Protection Division, Depart- 
ment of Environment, Health and Natural Resourc- 
es; 

Director, Office of Waste Reduction (Pollution 
Prevention Program), Department Environment, 
Health and Natural Resources; 

Director, Emergency Planning, Division of 
Highways, Department of Transportation; 

Chief, Transportation Inspection, Division of 
Motor Vehicles (Enforcement Section), Depart- 
ment of Transportation; 



(e) Notify the Administrator of the Environmen- 
tal Protection Agency of facilities subject to the 
requirements of Section 302 of the Act. 

(f) Review the emergency plans submitted by 
local emergency planning committees and make 
recommendations to the committees on revisions of 
the plans that may be necessary to ensure coordi- 
nation of such plans with emergency response 
plans of other emergency planning districts. 

Section 3. Administration. 

(a) The Department of Crime Control and Public 
Safety shall provide administrative support and 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



641 



EXECUTIVE ORDERS 



staff as may be required. 

(b) Members of the Commission shall serve 
without compensation but may receive reimburse- 
ment, contingent on the availability of funds, for 
travel and subsistence expenses in accordance with 
state guidelines and procedures. 

Section 4. Effect on other Executive Orders . 

The following Executive Orders of the Martin 
Administration are hereby rescinded: Numbers 
43, 48, 50, and 165. All other portions of Execu- 
tive Orders inconsistent herewith are also rescind- 
ed. 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capitol City of Raleigh, North 
Carolina, this the 16th day of June, 1993. 

EXECUTIVE ORDER NUMBER 18 

EMERGENCY MANAGEMENT 

PROGRAM 

WHEREAS, the natural phenomena such as 
hurricanes, floods, tornadoes, severe winter weath- 
er, droughts, earthquakes, and man-made disasters 
such as explosions or major electric power failures 
are an ever-present danger; and 

WHEREAS, potential enemies of the United 
States now possess the capability of launching 
attacks and unprecedented destruction upon this 
State and nation, from land, sea and air; and 

WHEREAS, it is the duty of the Department of 
Crime Control and Public Safety to provide emer- 
gency services to protect the public against natural 
and man-made disasters; and 

WHEREAS, it is the duty of the Department of 
Crime Control and Public Safety to ensure the 
preparation, coordination, and readiness of emer- 
gency management and military plans and effective 
conduct of emergency operations by all participat- 
ing agencies in order to sustain life and prevent, 
minimize, or remedy injury to persons and damage 
to property resulting from disasters caused by 
enemy attack or other hostile actions or from 
disasters due to natural or man-made causes; and 

WHEREAS, the Emergency Management Act of 
1977, as amended, N.C.G.S. 166A-1, et seg., the 



North Carolina Emergency War Powers Act, 
N.C.G.S. 147-33.1, et seq. , and Article 36A of 
Chapter 14 of the General Statutes confer upon the 
Governor comprehensive powers to be exercised in 
providing for the common defense and protection 
of the lives and property of the people of this State 
against both man-made and natural disasters; and 

WHEREAS, the effective exercise of these 
emergency powers requires extensive initial plan- 
ning, continued revision and exercising of plans, 
assignment of emergency management functions 
prior to the occurrence of an emergency, the 
training of personnel in order to ensure a smooth, 
effective application of governmental functions to 
emergency operations, and the quick response of 
all necessary State resources; and 

WHEREAS, these emergency management 
functions are intended to be and can be accom- 
plished most effectively through those established 
activities of state and local government whose 
normal functions relate to those emergency servic- 
es which would be needed; 

NOW, THEREFORE, pursuant to the authority 
vested in me as Governor by the laws and the 
Constitution of North Carolina, IT IS 
ORDERED: 

Section U Coordination of Services. 

In the event the Governor, in the exercise of his 
constitutional and statutory responsibilities, shall 
deem it necessary to utilize the service of more 
than one subunit of state government to provide 
protection to the people from natural or man-made 
disasters or emergencies, including, but not limited 
to, wars, insurrections, riots, civil disturbances, or 
accidents, the Secretary of Crime Control and 
Public Safety, under the direction of the Governor, 
shall serve as the chief coordinating officer for the 
State between the respective subunits so utilized, 
as provided in N.C.G.S. 143B-476. 

Section 2. Response to Emergency. 

Whenever the Secretary of Crime Control and 
Public Safety exercises the authority provided in 
Section 1, he shall be authorized to utilize and 
allocate all available state resources as are 
reasonably necessary to cope with the emergency 
or disaster. His authority includes the direction of 
personnel and functions of state agencies for the 
purpose of performing or facilitating the initial 
response to the disaster or emergency. Following 
the initial response, the Secretary, in consultation 



642 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



EXECUTIVE ORDERS 



with the heads of the state agencies which have, or 
appear to have, responsibility for dealing with the 
emergency or disaster, shall designate one or more 
lead agencies to be responsible for subsequent 
phases of the response to the emergency or 
disaster. Pending an opportunity to consult with 
the head of such agencies, the Secretary may make 
interim lead agency designations. 

Section 3. Reporting. 

Every department of state government is required 
to report to the Secretary of Crime Control and 
Public Safety, by the fastest means practicable, all 
natural or man-made disasters or emergencies, 
which appear likely to require the utilization of the 
services of more than one subunit of State 
government. 

Section 4. Delegation of Authority. 

The Secretary of Crime Control and Public 
Safety is hereby authorized to delegate the 
authority to utilize and allocate all available state 
resources as may be necessary to carry out the 
intent of this order. 

Section 5. Publication of Emergency Plans. 

An explanation of the emergency management 
functions assigned to each state department, 
division, subdivision, or agency is contained in the 
state plans developed and published by the 
Division of Emergency Management of the North 
Carolina Department of Crime Control and Public 
Safety. The provisions of these documents, 
including attached annexes and any future 
revisions, are specifically incorporated herein by 
reference. 



department or agency. 

Section 8. Liaisons. 

The head of each department, agency, 
commission or office of state government that is 
charged with emergency management 
responsibilities shall designate personnel to 
perform liaison functions with all other 
components of state government on matters 
pertaining to emergency management activities. 

Section 9. Procedures. 

The heads of state government departments 
assigned emergency management functions shall 
prepare procedures to procure from governmental 
and private sources all materials, manpower, 
equipment, supplies, and services necessary to 
carry out these assigned functions. Each agency 
of state government shall cooperate with all other 
agencies of state government to assure the 
availability of resources in an emergency. 

Section 10. Effect on Other Executive Orders. 

Executive Order Number 73 of the Martin 
Administration is hereby rescinded. 

This Order shall become effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 16th day of June, 1993. 



Section 6. Su pporting Plans. 

The heads of the departments of state 
government and other agencies designated in the 
state emergency plans are granted the authority, 
and charged with the responsibility, to develop 
supporting plans and procedures. Upon orders of 
the Governor, Secretary of Crime Control and 
Public Safety, or his designee, these personnel 
shall execute the emergency management functions 
assigned to them in the emergency plans. 

Section 7. Revision of Plans. 

The Secretary of Crime Control and Public 
Safety is hereby authorized to update and 
periodically revise or cause to be revised the state 
emergency plans and supporting plans to ensure 
that they will be current and consistent with the 
functions, duties, and capabilities of a given 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



643 



PROPOSED RULES 



TITLE 10 - DEPARTMENT 
OF HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Medical Care Commission 
intends to adopt rules cited as 10 NCAC 3C .2031 
- .2032, 3H .1161 - .1162; amend rules cited as 
10 NCAC 3C .2021 , 3H .0108, .0315, .0317 and 
.1151. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 9:30 
a.m. on September 10, 1993 at Room 201 , Council 
Building, 701 Barbour Drive , Raleigh, NC 27603. 

ixeason for Proposed Action: 
10 NCAC 3C .2021, .2031-. 2032, 10 NCAC 3H 
.1151, .1161-. 1162 - To establish rules for inpa- 
tient rehabilitation beds operated by acute care 
hospitals and nursing facilities. 
10 NCAC 3H .0108, .0315, .0317 - To clarify 
definitions related to patient abuse and neglect and 
describe procedures for reporting and investigating 
incidents of abuse or neglect. 

i^omment Procedures: All written comments must 
be submitted to Jackie Sheppard, APA Coordina- 
tor, PO Box 29530, Raleigh, NC 27626-0530 up to 
and including August 16, 1993. Written comments 
submitted after the deadline will not be considered 
by the Commission. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3C - LICENSING 
OF HOSPITALS 

SECTION .2000 - SPECIALLY 
DESIGNATED UNITS 

.2021 PHYSICIAN REQS FOR 

INPATIENT REHABILITATION 
FACILITIES OR UNITS 

(a) In a rehabilitation facility or unit a physician 
shall participate in the provision and management 
of rehabilitation services and in the provision of 
medical services. 

(b) In a rehabilitation facility or unit a rehabili- 
tation physician shall be responsible for a patient's 



interdisciplinary treatment plan. Each patient's 
interdisciplinary treatment plan shall be developed 
and implemented under the supervision of a reha- 
bilitation physician. 

(c) The rehabilitation physician shall participate 
in the preliminary assessment within 48 hours of 
admission, prepare a plan of care and direct the 
necessary frequency of contact based on the 
medical and rehabilitation needs of the patient. 
The frequency shall be appropriate to justify the 
need for comprehensive inpatient rehabilitation 
care. 

(ed) An inpatient rehabilitation facility or unit's 
contract or agreements with a rehabilitation physi- 
cian shall require that the rehabilitation physician 
shall participate in individual case conferences or 
care planning sessions and shall review and sign 
discharge summaries and records. When patients 
are to be discharged to another health care facility, 
the discharging facility shall assure that the patient 
has been provided with a discharge plan which 
incorporates post discharge continuity of care and 
services. When patients are to be discharged to a 
residential setting, the facility shall assure that the 
patient has been provided with a discharge plan 
that incorporates the utilization of community 
resources when available and when included in the 
patient's plan of care. 

(ed) The intensity of physician medical services 
and the frequency of regular contacts for medical 
care for the patient shall be determined by the 
patient's pathophysiologic needs. 

(ef) Where the attending physician of a patient 
in an inpatient rehabilitation facility or unit orders 
medical consultations for the patient, such consul- 
tations shall be provided by qualified physicians 
within 48 hours of the physician's order. In order 
to achieve this result, the contracts or agreements 
between inpatient rehabilitation facilities or units 
and medical consultants shall require that such 
consultants render the requested medical consulta- 
tion within 48 hours. 

(fg) An inpatient rehabilitation facility or unit 
shall have a written procedure for setting the 
qualifications of the physicians rendering physical 
rehabilitation services in the facility or unit. 

Statutory Authority G.S. 131E-79; 143B-165. 

.2031 ADDITIONAL REQUIREMENTS 
FOR TRAUMATIC BRAIN 
INJURY PATIENTS 

Inpatient rehabilitation facilities providing servic- 
es to persons with traumatic brain injuries shall 
meet the requirements in this Rule in addition to 



644 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



those identified in this Section. 

(1) Direct-care nursing personnel staffing 
ratios established in Rule .2027 of this 
Section shall not be applied to nursing 
services for traumatic brain injury pa- 
tients in the inpatient, rehabilitation 
facility or unit. The minimum nursing 
hours per traumatic brain injury patient 
in the unit shall be 6.5 nursing hours per 
patient day. At no time shall direct care 
nursing staff be less than two full-time 
equivalents, one of which shall be a 
registered nurse. 

(2) The inpatient rehabilitation facility or unit 
shall employ or provide by contractual 
agreements physical, occupational or 
speech therapists in order to provide a 
minimum of 4^5 hours of specific or 
combined rehabilitation therapy services 
per traumatic brain injury patient day. 

(3) The facility shall provide special facility 
or equipment needs for patients with 
traumatic brain injury, including a quiet 
room for therapy, specially designed 
wheelchairs, standing tables and comput- 
ers with cognitive retraining software. 

£4} The medical director of an inpatient 
traumatic brain injury program shall have 
two years management in a brain injury 
program, one of which may be in a 
clinical fellowship program and board 
eligibility or certification in the medical 
specialty of the physician's training. 

(5) The facility shall provide the consulting 
services of a neuropsychologist. 

(6) The facility shall provide continuing 
education in the care and treatment of 
brain injury patients for all staff. 

(7) The facility shall document specific staff 
training and education in the care and 
treatment of brain injury. 

(8) The size of the brain injury program shall 
be adequate to support a comprehensive, 
dedicated ongoing brain injury program. 

Statutory Authority G.S. 131E-79; 143B-165. 

.2032 ADDITIONAL REQUIREMENTS 
FOR SPINAL CORD INJURY 
PATIENTS 

Inpatient rehabilitation facilities providing servic- 
es to persons with spinal cord injuries shall meet 
the requirements in this Rule in addition to those 
identified in this Section. 

(1) Direct-care nursing personnel staffing 



ratios established in Rule .2027 of this 
Section shall not be applied to nursing 
services for spinal cord injury patients in 
the inpatient, rehabilitation facility or 
unit. The minimum nursing hours per 
spinal cord injury patient in the unit shall 
be 6.0 nursing hours p er patient day. At 
no time shall direct care nursing staff be 
less than two full-time equivalents, one of 
which shall be a registered nurse. 

(2) The inpatient rehabilitation facility or unit 
shall employ or provide by contractual 
agreements physical, occupational or 
speech therapists in order to provide a 
minimum of 4.0 hours of specific or 
combined rehabilitation therapy services 
per spinal cord injury patient day. 

(3) The facility shall provide special facility 
or special equipment needs of patients 
with spinal cord injury, including special- 
ly_ designed wheelchairs, tilt tables and 
standing tables. 

(4) The medical director of an inpatient 
spinal cord injury program shall have 
either two years experience in the medi- 
cal care of persons with spinal cord 
injuries or six month's minimum in a 
spinal cord injury fellowship. 

(5) The facility shall provide continuing 
education in the care and treatment of 
spinal cord injury patients for all staff. 

(6) The facility shall provide specific staff 
training and education in the care and 
treatment of spinal cord injury. 

(7) The size of the spinal cord injury pro- 
gram shall be adequate to support a 
comprehensive, dedicated ongoing spinal 
cord injury program. 

Statutory Authority G.S. 131E-79; 143B-165. 

SUBCHAPTER 3H - RULES FOR 

THE LICENSING OF 

NURSING HOMES 

SECTION .0100 - GENERAL 
INFORMATION 

.0108 DEFINITIONS 

The following definitions will apply throughout 
this Subchapter: 

(1) "Abuse" means the infliction of physical 
pain, injury, mental anguish or unreason- 
able confinement which may cause or 
result jn temporary or permanent mental 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



645 



PROPOSED RULES 



(a) 



lb] 



icj 



Id) 



LSJ 



(+2) 



(33) 



(34) 

(45) 



(56) 



or physical injury, pain, harm, or death. 

Abuse includes, but |s not limited to, the 

following: 
Verbal abuse z any use of oral, written 
or gestured language which a reason- 
able person would view as disparaging 
and derogatory terms to a patient re- 
gardless of his or her age, ability to 
comprehend or disability; 
Sexual abuse - sexual harassment, 
sexual coercion or sexual assault of a 
patient; 

Physical abuse z hitting, slapping, 
kicking or corporal punishment of a 
patient; 

Mental abuse z language or treatment 
which would be viewed by a reasonable 
person as involving humiliation, harass- 
ment, threats of punishment or depriva- 
tion of a patient; 

Unreasonable confinement - the separa- 
tion of a patient from other persons, or 
from his or her room, against the 
patient's will or the will of the patient's 
legal representative. Unreasonable 
confinement does not include 



emergency or 
separation used 



short-term monitored 



as therapeutic 



intervention to reduce agitation until a 
plan of care is developed to meet the 
patient's needs, 
"Accident" means an unplanned or un- 
wanted event resulting in the injury or 
wounding, no matter how slight, of a 
patient or other individual. 
"Adequate" means, when applied to 
various services, that the services are at 
least satisfactory in meeting a referred to 
need when measured against contempo- 
rary professional standards of practice. 
"Administrator" means the person who 
has authority for and is responsible for 
the overall operation of a facility. 
"Appropriate" means right for the speci- 
fied use or purpose, suitable or proper 
when used as an adjective. When used 
as a transitive verb it means to set aside 
for some specified exclusive use. 
"Brain injury long term care" is defined 
as an interdisciplinary, intensive mainte- 
nance program for patients who have 
incurred brain damage caused by external 
physical trauma and who have completed 
a primary course of rehabilitative treat- 
ment and have reached a point of no gain 



or progress for more than three consecu- 
tive months. Services are provided 
through a medically supervised interdisci- 
plinary process and are directed toward 
maintaining the individual at the optimal 
level of physical, cognitive and behavior- 
al functions. 

(67) "Capacity" means the maximum number 
of patient or resident beds for which the 
facility is licensed to maintain at any 
given time. 

(38) "Combination facility" means a combina- 
tion home as defined in G.S. 131E-101. 

(89) Convalescent care" means care given for 
the purpose of assisting the patient or 
resident to regain health or strength. 

(910) "Department" means the North Carolina 
Department of Human Resources. 

(+6H) "Director of Nursing" means the nurse 
who has authority and direct responsibil- 
ity for all nursing services and nursing 
care. 

(4412) "Drug" means substances: 

(a) recognized in the official United States 
Pharmacopoeia, official National For- 
mulary, or any supplement to any of 
them; 

(b) intended for use in the diagnosis, cure, 
mitigation, treatment, or prevention of 
disease in man or other animals; 

(c) intended to affect the structure or any 
function of the body of man or other 
animals, i.e., substances other than 
food; and 

(d) intended for use as a component of any 
article specified in (a), (b), or (c) of 
this Subparagraph. 

(4-2-L3) "Duly licensed" means holding a current 
and valid license as required under the 
General Statutes of North Carolina. 

(4-314) "Existing facility" means a facility cur- 
rently licensed or a proposed facility, 
proposed addition to a licensed facility 
or proposed remodeled licensed facility 
that will be built according to plans and 
specifications which have been approved 
by the Department through the prelimi- 
nary working drawings state prior to the 
effective date of this Rule. 

(4415) "Exit conference" means the conference 
held at the end of a survey, or investiga- 
tion between the Department's represen- 
tatives and the facility administration 
representative. 

(16) "Finding" means a determination by the 



646 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



> 



> 



I 



State that an allegation of patient abuse 
or neglect, or misappropriation of patient 
property has been substantiated. 

(4517) "HIV Unit" means designated areas 
dedicated to patients or residents known 
to have Human Immunodeficiency Virus 
disease. 

(-1-618) "Incident" means an unplanned or 
unwanted event which has not caused a 
wound or injury to any individual but 
which has the potential for such should 
the event be repeated. 

(-1-719) "Interdisciplinary" means an integrated 
process involving a representative from 
each discipline of the health care team. 

(+820) "Licensed practical nurse" means a nurse 
who is duly licensed as a practical nurse 
under G.S. 90, Article 9A. 

(4- 92H "Licensee" means the person, firm, 
partnership, association, corporation or 
organization to whom a license has been 
issued. 

(3022) "Medication" means drug as defined in 
(11) of this Rule. 

(23 ) "Misappropriation of property" means the 
intentional exploitation, or wrongful 
taking or use of a patient's belongings or 
money whether temporary or permanent. 

(24 ) "Neglect" means a failure through a lack 
of attention, carelessness, or omission, to 
provide timely and consistent services, 
treatment or care to a patient which are 
necessary to obtain or maintain the 
patient's health, safety or comfort. 

(2425) "New facility" means a proposed facility, 
a proposed addition to an existing facility 
or a proposed remodeled portion of an 
existing facility that is constructed 
according to plans and specifications 
approved by the Department subsequent 
to the effective date of this Rule. If 
determined by the Department that more 
than half of an existing facility is 
remodeled, the entire existing facility 
shall be considered a new facility. 

(3226) "Nurse Aide" means any individual 
providing nursing or nursing-related 
services to patients in a facility who is 
not a licensed health professional, a 
qualified dietitian, or someone who 
volunteers to provide such services 
without pay, and listed in a nurse aide 
registry approved by the Department. 

(3327) "Nurse Aide Trainee" means an 
individual who has not completed an 



approved nurse aide training course and 
competency evaluation and is 
demonstrating knowledge, while 
performing tasks for which they have 
been found proficient by an instructor. 
These tasks shall be performed under the 
direct supervision or a registered nurse. 
The term does not apply to volunteers. 

(3428) "Nursing Facility" means that portion of 
a nursing home certified under Title XIX 
of the Social Security Act (Medicaid) as 
in compliance with federal program 
standards for nursing facilities. It is 
often used as synonymous with the term 
"nursing home" which is the usual 
prerequisite level of state licensure for 
nursing facility (NF) certification and 
Medicare skilled nursing facility (SNF) 
certification. 

(3529) "Nurse in charge" means the nurse to 
whom duties for a specified number of 
patients and staff for a specified period of 
time have been delegated, such as for 
Unit A on the 7-3 or 3-1 1 shift. 

(3630) "On duty" means personnel who are 
awake, dressed, responsive to patient 
needs and physically present in the 
facility performing assigned duties. 

(3731) "Operator" means the owner of the 
nursing home business. 

(3832) "Patient" means any person admitted for 
nursing care. 

(3933) "Person" means an individual, trust, 
estate, partnership or corporation 
including associations, joint-stock 
companies and insurance companies. 

(3034) "Proposal" means a Negative Action 
Proposal containing documentation of 
findings that may ultimately be classified 
as violations and penalized accordingly. 

(34-35) "Provisional License" means an amended 
license recognizing significantly less than 
full compliance with the licensure rules. 

(3336) "Physician" means a person licensed 
under G.S. Chapter 90, Article 1 to 
practice medicine in North Carolina. 

(3337) "Qualified Activities Director" means a 
person who has the authority and 
responsibility for the direction of all 
therapeutic activities in the nursing 
facility and who meets the qualifications 
set forth under 10 NCAC 3H .1204. 

(3438) "Qualified Dietitian" means a person who 
meets the standards and qualification 
established by the Commission on 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



647 



PROPOSED RULES 



Dietetic Registration of the American 
Dietetic Association included in 
"Standards of Practice" seven dollars and 
twenty-five cents ($7.25) or "Code of 
Ethics for the Profession of Dietetics" 
two dollars and fifteen cents ($2.15), 
American Dietetic Association, 216 W. 
Jackson Blvd., Chicago, IL 60606-6995. 

(3539) "Qualified Pharmacist" means a person 
who is licensed to practice pharmacy in 
North Carolina and who meets the 
qualifications set forth under 10 NCAC 
3H .0903. 

(3640) "Qualified Social Services Director" 
means a person who has the authority and 
responsibility for the provision of social 
services in the nursing home and who 
meets the qualification set forth under 10 
NCAC 3H .1306. 

(334 1 ) "Registered Nurse" means a nurse who is 
duly licensed as a registered nurse under 
G.S. 90, Article 9A. 

(3842) "Resident" means any person admitted 
for care to a domiciliary home part of a 
combination home as defined in G.S. 
131E-101. 

(3943) "Sitter"means an individual employed to 
provide companionship and social 
interaction to a particular patient, usually 
on a private duty basis. 

(4044) "Supervisor-in-Charge (domiciliary 
home)" means any employee to whom 
supervisory duties for the domiciliary 
home portion of a combination home 
have been delegated by either the 
Administrator or Director of Nursing. 

(44-45) Surveyor" means an authorized 
representative of the Department who 
inspects nursing facilities and 
combination facilities to determine 
compliance with rules as set forth in G.S. 
1 3 1 E- 1 1 7 and applicable state and federal 
laws, rules and regulations. 

(4546) "Ventilator dependence" is defined as 
physiological dependency by a patient on 
the use of a ventilator for more than eight 
hours a day. 

(4347) "Violation" means a finding which 
directly relates to a patient's health, 
safety or welfare or which creates a 
substantial risk that death or serious 
physical harm will occur and is 
determined to be an infraction of the 
regulations, standards and requirements 
set forth in G.S. 131 E- 117 or applicable 



state and federal laws, rules and 
regulations. 

Statutory Authority G.S. 131E-104; 42 U.S.C. 
1396r(a). 

SECTION .0300 - GENERAL 

STANDARDS OF 

ADMINISTRATION 

.0315 NURSING HOME PATIENT RIGHTS 

(a) Written policies and procedures shall be 
developed and enforced to implement requirements 
in G.S. 131E-115 et seq. (Nursing Home Patients' 
Bill of Rights) concerning the rights of patients 
and residents . The Administrator shall make these 
policies and procedures known to the staff, patients 
and — residents, and families of patients aed 
residents and shall ensure their availability to the 
public by placing them in a conspicuous place. 

(b) In matters of patient abuse, neglect or 
misappropriation the definitions shall have the 
meaning defined in Rule .0108 of this Subchapter 
for abuse, neglect and exploitation respectively as 
contained in the North Carolina Protection of the 
Abused, Neglected or Exploited Disabled Adult 
Act, G.S. 108A 99 et seq . 

Statutory Authority G.S. 131E-104; 131E-111; 
131E-124; 131E-129;42 U.S.C. 1396r(e)(2)(B). 

.0317 REPORTING AND INVESTIGATING 
ABUSE, NEGLECT OR 
MISAPPROPRIATION 

(a) The facility shall take proper measures to 
prevent patient abuse, patient neglect, or 
misappropriation of patient property, including but 
not limited to orientation and instruction of facility 
staff on patients' rights, and the requesting of 
references for all prospective employees. 

(b) The Administrator shall assure that the 
Department is notified of those accidents resulting 
in death, burns, fractured bones, severe cuts or 
bruises, hospitalization and all alleged incidents ef 
accidents which appear to be related to patient 
abuse^ ef neglect or misappropriation of patient 
property . 

(c) The incident report shall be printed or typed 
and postmarked within 48 hours of the accident or 
incident The report shall be conducted as 
specified in 42 CFR subsection 483.13 and shall 
consist of a simple statement of the patient's ef 
resident's full namer; room number^ date and time 
of the incident or accident^ type of injury, abuse, 
neglect or misappropriation of property; names of 



648 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



persons involved^ and immediate action taken by 
the facility. 

(d) The facility shall thoroughly investigate and 
document according to 42 CFR subsection 483. 13, 
which is incorporated by reference, including 
subsequent amendments, all alleged incidents of 
patient abuse, patient neglect, or misappropriation 
of patient property and shall take whatever steps 
are necessary to prevent further incidents of abuse, 
neglect or misappropriation of property while the 
investigation is in progress. 

(e) The facility shall make available for 
inspection by the Department any information 
related to any alleged incident of patient abuse, 
patient neglect, or misappropriation of patient 
property including but not limited to medical 
records; incident reports; facility investigation; 
statements by victims, witnesses and alleged 
perpetrators; performance evaluations, in-service 
education, verification of listing on Nurse Aide 
Registry, prior disciplinary actions, employment 
references, and orientation documentation of staff 
witnesses and alleged perpetrators; facility 
policies; and any information related to the alleged 
incident. 

Authority G.S. 131E-104; 131E-111; 143B-165;42 
U.S.C. 1395; 42 U.S.C. 1396; 42 C.F.R. 483. 

SECTION .1100 - SPECIALLY 
DESIGNATED UNITS 

.1151 PHYSICIAN REQUIREMENTS/ 
INPATIENT REHABILITATION 
FACILITIES OR UNITS 

(a) In a rehabilitation facility or unit a physician 
shall participate in the provision and management 
of rehabilitation services and in the provision of 
medical services. 

(b) In a rehabilitation facility or unit a 
rehabilitation physician shall be responsible for a 
patient's interdisciplinary treatment plan. Each 
patient's interdisciplinary treatment plan shall be 
developed and implemented under the supervision 
of a rehabilitation physician. 

(c) The rehabilitation physician shall participate 
in the preliminary assessment within 48 hours of 
admission, prepare a plan of care and direct the 
necessary frequency of contact based on the 
medical and rehabilitation needs of the patient. 
The frequency shall be appropriate to justify the 
need for comprehensive inpatient rehabilitation 
care. 

(ed) An inpatient rehabilitation facility or unit's 
contract or agreements with a rehabilitation 



physician shall require that the rehabilitation 
physician shall participate in individual case 
conferences or care planning sessions and shall 
review and sign discharge summaries and records. 
When patients are to be discharged to another 
health care facility, the discharging facility shall 
assure that the patient has been provided with a 
discharge plan which incorporates post discharge 
continuity of care and services. When patients are 
to be discharged to a residential setting, the facility 
shall assure that the patient has been provided with 
a discharge plan that incorporates the utilization of 
community resources when available and when 
included in the patient's plan of care. 

(ed) The intensity of physician medical services 
and the frequency of regular contacts for medical 
care for the patient shall be determined by the 
patient's pathophysiologic needs. 

(fe) Where the attending physician of a patient in 
an inpatient rehabilitation facility or unit orders 
medical consultations for the patient, such 
consultations shall be provided by qualified 
physicians within 48 hours of the physician's 
order. In order to achieve this result, the contracts 
or agreements between inpatient rehabilitation 
facilities or units and medical consultants shall 
require that such consultants render the requested 
medical consultation within 48 hours. 

(gf) An inpatient rehabilitation facility or unit 
shall have a written procedure for setting the 
qualifications of the physicians rendering physical 
rehabilitation services in the facility or unit. 

Statutory Authority G.S. 131E-104. 

.1161 ADDITIONAL REQUIREMENTS 
FOR TRAUMATIC BRAIN 
INJURY PATIENTS 

Inpatient rehabilitation facilities providing 
services to persons with traumatic brain injuries 
shall meet the requirements in this Rule in addition 
to those identified in this Section. 

(1) Direct-care nursing personnel staffing 
ratios established in Rule . 1 157 of this 
Section shall not be applied to nursing 
services for traumatic brain injury 
patients in the inpatient, rehabilitation 
facility or unit. The minimum nursing 
hours per traumatic brain injury patient 
in the unit shall be (L5 nursing hours per 
patient day. At no time shall direct care 
nursing staff be less than two full-time 
equivalents, one of which shall be a 
registered nurse. 

(2) The inpatient rehabilitation facility or unit 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



649 



PROPOSED RULES 



shall employ or provide by contractual 
agreements physical, occupational or 
speech therapists in order to provide a 
minimum of 4^5 hours of specific or 
combined rehabilitation therapy services 
per traumatic brain injury patient day. 

(3) The facility shall provide special facility 
or equipment needs for patients with 
traumatic brain injury, including a quiet 
room for therapy, specially designed 
wheelchairs, standing tables and 
computers with cognitive retraining 
software. 

(4) The medical director of an inpatient 
traumatic brain injury program shall have 
two years management in a brain injury 
program, one of which may be in a 
clinical fellowship program and board 
eligibility or certification in the medical 
specialty of the physician's training. 

(5) The facility shall provide the consulting 
services of a neuropsychologist. 

(6) The facility shall provide continuing 
education in the care and treatment of 
brain injury patients for all staff. 

(7) The facility shall document specific staff 
training and education in the care and 
treatment of brain injury. 

(8) The size of the brain injury program shall 
be adequate to support a comprehensive, 
dedicated ongoing brain injury program. 

Statutory Authority G.S. 131E-104. 

.1162 ADDITIONAL REQUIREMENTS 
FOR SPINAL CORD 
INJURY PATIENTS 

Inpatient rehabilitation facilities providing 
services to persons with spinal cord injuries shall 
meet the requirements in this Rule in addition to 
those identified in this Section. 

(1) Direct-care nursing personnel staffing 
ratios established in Rule .1 157 of this 
Section shall not be applied to nursing 
services for spinal cord injury patients in 
the inpatient, rehabilitation facility or 
unit. The minimum nursing hours per 
spinal cord injury patient in the unit shall 
be 6J) nursing hours per patient day. At 
no time shall direct care nursing staff be 
less than two full-time equivalents, one of 
which shall be a registered nurse. 

(2) The inpatient rehabilitation facility or unit 
shall employ or provide by contractual 
agreements physical, occupational or 



speech therapists in order to provide a 
minimum of 4JD hours of specific or 
combined rehabilitation therapy services 
per spinal cord injury patient day. 

(3) The facility shall provide special facility 
or special equipment needs of patients 
with spinal cord injury, including 
specially designed wheelchairs, tilt tables 
and standing tables . 

(4) The medical director of an inpatient 
spinal cord injury program shall have 
either two years experience in the 
medical care of persons with spinal cord 
injuries or six month's minimum in a 
spinal cord injury fellowship. 

(5) The facility shall provide continuing 
education in the care and treatment of 
spinal cord injury patients for all staff. 

(6) The facility shall provide specific staff 
training and education in the care and 
treatment of spinal cord injury. 

(7) The size of the spinal cord injury 
program shall be adequate to support a 
comprehensive, dedicated ongoing spinal 
cord injury program. 

Statutory Authority G.S. 131E-104. 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Services for the 
Deaf and Hard of Hearing intends to amend rules 
cited as 10 NCAC 23E .0302 and .0304 - 0309. 

1 he proposed effective date of this action is 
October 1, 1993. 

1 he public hearing will be conducted at 6:00 
p.m. on August 19, 1993 at the Anderson Building, 
Dix Campus, Conference Room, 1st Floor, 695A 
Palmer Drive, Raleigh, NC 27626 . 

Mxeason for Proposed Action: Expand existing 
testing system to incorporate testing of interpreters 
in educational settings. 



Lsomment Procedures: Any interested person may 
present his/her comments at the hearing for a 
maximum of 10 minutes or by submitting a written 



650 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



statement. Any person wishing to make a presen- 
tation at the hearing should contact: Louise Spry, 
DSD/HH 695 A Palmer Drive, Raleigh, NC, 27626, 
(919) 733-5199 by August 19, 1993. The hearing 
record will remain op en for written comments until 
August 19, 1993. Written comments must be sent 
to the address above and must state the proposed 
rule or rules to which the comments are addressed. 
Fiscal information is also available upon request 
from the same address. 

CHAPTER 23 - SERVICES FOR THE 

DEAF AND THE HARD 

OF HEARING 

SUBCHAPTER 23E - SERVICES 
AVAILABLE 

SECTION .0300 - NORTH CAROLINA 

INTERPRETER CLASSIFICATION 

SYSTEM 

.0302 DEFINITIONS 

For the purpose of Rules .0501 .0301 through 
.0510 .0310 of this Section the following terms 
shall have the meanings indicated: 

(1) "Classifications" means one of the four 
levels of skill based on the total score 
given by the evaluators on the classifica- 
tion test. 

(2) "Classification Team" means a group of 
three evaluators designated to review an 
NCICS candidate's videotaped perfor- 
mance scoring the performance in accor- 
dance with the training received as an 
evaluator in the NCICS process in which 
they are participating. 

{3) £3} "Critical Situations" means any inter- 
preting assignment which has the poten- 
tial for altering the quality of someone's 
life either physically, emotionally or 
financially. 

(4) "Community-based Test" means the tract 
of the NCICS, NCICS-C, which tests the 
competency of interpreters working in 
community-based settings such as medi- 
cal, legal and mental health situations. 
"D.P.I." means the Department of Public 
Instruction. 
"D.E.C." means the D.P.I. 's Division of 



£5) 

16} 

(4) 



Exceptional Children. 

(7) "Division" means the North Carolina 
Division of Services for the Deaf and the 
Hard of Hearing. 

(8) "Division Director" means the Direc- 



tor of the North Carolina Division of 
Services for the Deaf and the Hard of 
Hearing. 

(9) "Educational-based Test" means the tract 
of the NCICS, NCICS-E, which tests the 
competency of interpreters working in 
educational settings such as elementary, 
secondary and post-secondary schools. 

{§) (10) "Evaluators" are persons who have 
received formal instruction regarding the 
NCICS process processes from the Divi- 
sion regarding terminology and scoring in 
an effort to attain the highest level of 
validity, reliability and consistency 
possible. 

{6) (11) "Interpreter Training" means activi- 
ties recognized by the Division which are 
oriented toward the enhancement of 
interpreting practice, values, skills and 
knowledge such as continuing education 
courses, workshops, seminars, conferenc- 
es, lectures, and post-secondary courses. 

f?) £12} "N.C.I. C.S." means the North 
Carolina Interpreter Classification Sys- 
tem. 

<& £13} "N.R.I.D." means the National 
Registry of Interpreters for the Deaf. 

{9) (14) "Sign Language Interpreter" means 
a person who performs services for the 
public in the capacity of an interpreter or 
transliterator between one or more hear- 
ing persons and one or more deaf persons 
using American Sign Language or manu- 
ally coded English. 

(15) "NCICS-C Standards of Ethical Behav- 
ior" are behavioral guidelines for inter- 
preters working primarily in community 
based settings established by the Texas 
Commission for the Deaf and adopted by 
reference under the provisions of G.S. 
150B- 14(c) to protect the rights of the 
consumers both hearing and hearing- 
impaired and the interpreters. 

(16) "NCICS-E Standards of Ethical Behav- 
ior" are behavioral guidelines for inter- 
preters working primarily in educational 
settings developed by the Division and 
DPI established to protect the rights of 
the consumers both hearing and hearing- 
impaired and the interpreters. 

£W) (17) "State Coordinator" means a person 
employed by the Division of Services for 
the Deaf and the Hard of Hearing whose 
responsibility is to administer and oversee 
all aspects of the classification process. 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



651 



PROPOSED RULES 



(18) "Transliterator" means a person who 
performs services for the public in the 
capacity of a transliterator between one 
or more hearing persons and one or more 
deaf persons using a form of manually 
coded English. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33; 150B-14(c). 

.0304 APPLICATION 

The following shall be the proce ss for application 
process for classification to be cla ss ified : 

(1) Application forms and the dates of 
classification sessions shall be available at 
any office of the Division. 

(2) Applications shall be completed and sent 
to the state office of the Division at least 
30 days prior to the scheduled 
classification session . Applicants shall be 
selected for each classification session in 
the order that the applications were 
received. Applicants who cannot be 
included in any given classification 
session shall be placed on priority for the 
next session. 

(3) Each applicant shall return a signed copy 
of the applicable, NCICS-C and/ or 
NCICS-E, Standards of Ethical Behavior 
and a statement agreeing to maintain the 
confidentiality of the testing materials. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33. 

.0305 CLASSIFICATION TEAM 
AND EVALUATORS 

The criteria for the classification team and the 
classification team members shall be: 

(1) The classification team shall be composed 
of at least three trained evaluators. At 
least one evaluator shall be hearing and 
one shall be hearing-impaired. 

(2) Service terms of active evaluators shall 
be a maximum of two years with a 
mandatory one-year break between 
service periods. Retraining by the 
Division after the one-year break shall be 
required for continued participation on 
the classification team. 

(3) All hearing evaluators shall hold a 
current Class A classification for 
participation in the NCICS-C process or 
a current Class Advanced from the 
NCICS-E from the Division or current 



certification from the N.R.I.D. and all 
shall have successfully completed the 
evaluator training offered by the 
Division. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33. 

.0306 CLASSIFICATION 

(a) The classification process shall be as follows: 

(1) The Division shall conduct at least three 
classification sessions per year. 

(2) All testing for the classification process 
shall be videotaped. Videotapes shall 
be maintained within the Division for a 
period of not less than two years. 

(3) A written test covering the Standards of 
Ethical Behavior shall be administered 
prior to the skills portion of the 
N.C.I.C.S. process. An 80 percent 
passing score shall be required in order 
to proceed to the skills portion of the 
process. The Standards of Ethical 
Behavior consist of the following 
behavioral guidelines: 

(A) NCICS-C: 

(a) (j] Interpreter/transliterator shall 
keep all assignment-related 
information strictly confidential; 

(b) £ii] Interpreter/transliterator shall 
render the message faithfully, 
always conveying the content and 
spirit of the speaker, using 
language most readily understood 
by the person or persons whom 
they serve; 

fe) (iii) Interpreter/transliterator shall 
not counsel, advise or interject 
personal opinions; 

(d) (iv) Interpreter/transliterator shall 
accept assignments using 
discretion with regard to skills, 
setting and the consumers 
involved; 

(e) {vj Interpreter/transliterator shall 
request compensation for services 
in a professional and judicious 
manner; 

(f) (vi) Interpreter/transliterator shall 
maintain high professional 
standards and shall be expected to 
function in a manner appropriate 
to the situation while keeping in 
mind styles and colors which 
would enhance the effectiveness 



652 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



te> 



> 



> 



of the interpreting; 
(vii) Interpreter/transliterator shall 
strive to further knowledge and 
skills through participation in 
workshops, seminars, professional 
meetings, interaction with 
professional colleagues and 
reading of current literature in the 
field. 
£B} NCICS-E: 

(i) Interpreters/Transliterators may 
discuss assignment related 
information only with teachers 
and their supervisors who are 
directly responsible for the 
educational program of hearing- 
impaired children for whom the 
interpreterinterprets/transliterates. 
Interpreters/Transliterators shall 
render the message faithfully, 
always conveying the content and 
spirit of the speaker, using 
language and modality (CUED 
SPEECH, ORAL, SIGN 
LANGUAGE) most readily 
understood by the student(s) 
whom they serve. 
Under the direction of the subject 
area teacher and as dictated by the 
individualized education program, 
the interpreter/transliterator may 
tutor hearing-impaired students 
and assist them to better 
comprehend the presented 
material. For nonacademic 

i s s u e s , t h e 



lii) 



m 



I 



interpreter/transliterator should 
direct students to the a ppropriate 
professional- 
ly) Interpreters/Transliterators in the 
educational setting shall accept 
only the employment for which 
they are qualified based on their 
certification level and consumers 
involved and should request 
compensation commensurate with 
that level, 
(v) Interpreters/Transliterators shall 
function in a manner appropriate 
to the situation, 
(vi) Interpreters/Transliterators shall 
accept assigned responsibility and 
authority for their role as 
members of the educational team. 
They will abide by and enforce 



federal , state, school district and 
individual school regulations. 

(vii) Interpreters/Transliterators shall 
strive to further professional 
knowledge and skills through 
participation in workshops, 
professionals meetings, interaction 
with professional colleagues and 
reading of current literature in the 
field. 

(viii) Interpreters/Transliterators are 
encouraged to support the 
profession by striving to maintain 
or improve related skills, 
knowledge and application of 
those skills. 
(4) Classifications shall be based on the 
points awarded by evaluators during the 
classification process. Classifications 
levels shall be as follows: 
(A) NCICS-C: 

fa) {i} " Trainee Class Trainee " is a 
two year temporary classification 
indicating the 
interpreter/transliterator exhibited 
only the minimal entry level skills 
necessary for becoming classified 
achieving 61-70 percent of the 
total possible points. This 
interpreter shall only be assigned 
to non-critical, slow-paced 
situations in which there would be 
the ability to stop the speaker for 
clarification. This interpreter 
shall not under any circumstances 
accept or be placed in any 
assignment which could be 
considered critical. This person 
shall be sent on assignments with 
an interpreter holding a Class A 
or N.R.I.D. certification 
whenever possible. 

ffe) (ii) "Class C" means an 
interpreter/transliterator with 
intermediate skills scoring 71-80 
percent of the total possible 
points. This interpreter has 
demonstrated competency in all 
areas of interpreting and 
transliterating; however, it shall 
not be assumed that a Class C 
interpreter is capable of handling 
any and all situations. Critical 
medical and legal assignments 
shall be performed by Class A or 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



653 



PROPOSED RULES 



N.R.I.D. certified interpreters 
who have training and experience 
in these critical areas. 

{e) (iii) "Class B" is an 
interpreter/transliterator with 
comprehensive skills scoring 
81-90 percent of the total possible 
points. This interpreter has 
demonstrated a high level of 
competency in all areas of 
interpreting and transliterating and 
has shown the ability to accurately 
convey most of the subtleties of 
emotion, in addition to concepts. 

fd) (i v) "Class A" is an 
interpreter/transliterator with 
advanced skills scoring the highest 
possible 91-100 percent of the 
total possible points. This 

interpreter has demonstrated the 
highest level of competency in all 
areas of interpreting and 
transliterating and has shown the 
ability to accurately convey all 
aspects of the spoken or signed 
message including nuances of 
emotion, content and intricate 
concepts. Class A interpreters 
with proven expertise or training 
shall be used in critical situations. 
This interpreter is qualified for 
G.S. 8B-6 assignments. 
£BJ NCICS-E: 

D) "Class Novice" is a two year 
temporary classification indicating 
the interpreter/transliterator 
exhibited only the minimal entry 
level skills necessary for 
becoming classified achieving 61- 
70 percent of the total possible 
points. This interpreter shall only 
be assigned to slow paced, small 
group or individual situations in 
which there is an o pportunity to 
preview the material and/or stop 
the speaker for clarification. This 
interpreter shall not under any 
circumstances accept or be placed 
in any assignment which could be 
considered critical (e.g., 
counseling sessions, achievement 
or psychological testing, medical 
emergencies.) Ever effort should 
be made to provide this person 
with a mentor who holds an "A" 



classification from the NCICS-C. 
"Advanced" classification from 
the NCICS-E, or certification 
from the National Registry of 
Interpreters for the Deaf. 

Iii) "Class Beginner" i_s an 
interpreter/transliterator with 
intermediate skills, scoring 71-80 
percent of the total possible 
points. This interpreter has 
demonstrated proficiency in 
interpreting and transliterating; 
however, it shall not be assumed 
that a "Beginner" Classified 
interpreter is capable of handling 
any and all situations. Caution 
should be applied when 
considering highly technical 
material and critical out-of-class 
situations such as counseling 
sessions or psychological testing 
situations. A n 

interpreter/transliterator with this 
level should be able to 
competently handle situations in 
which there is an opportunity to 
stop the student or professional 
for clarification or repetition. 

(iii) "Class Intermediate" is an 
interpreter with comprehensive 
skills scoring 81-90 percent of the 
total possible points. This 
interpreter has demonstrated a 
high level of competency in most 
areas of interpreting and 
transliterating and has shown the 
ability to accurately convey most 
of the subtleties of emotion, in 
addition to concepts. This 

interpreter is qualified to handle 
most classroom situations with 
prior experience and some 
counseling and testing situation. 
An interpreter with this level 
should be able to effectively 
handle difficult, faster- paced 
communication where there may 



or may not be an o pportunity to 
stop for clarification or repetition. 
(iv) "Class Advanced" \_s an 
interpreter/transliterator with 
advanced skills scoring the highest 
possible 91-100 percent of the 
total possible points. This 

interpreter has demonstrated the 



654 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



highest level of competency in all 
areas of interpreting and 
transliterating and has shown the 
ability to accurately convey all 
aspects of the spoken or signed 
message including nuances of 
emotion, content and intricate 
concepts. An "Advanced" 

Classification is recommended for 
interpreting in counseling 
sessions, medical emergencies and 
psychological testing situation. 
An interpreter with this level can 
proficiently handle a full range of 
complex communication situations 
occurring in an educational 
environment. 

(5) All candidates shall receive written 
notification of their results within 30 45 
calendar days of the date of their 
classification session. 

(6) Candidates who do not exhibit skills at 
the minimum Class Trainee or Novice 
Class level may reapply for 
classification 60 calendar days after 
receipt of the results of their previous 
classification session. 

£b] f?) All candidates receiving classification 
from the N.C.I.C.S. shall have the option of 
having their names, phone numbers and addresses 
or their names only printed in the North Carolina 
Interpreter Directory. This Directory shall provide 
a reference for all consumers of interpreters. It 
shall also be a reference for all agencies who must 
meet the requirements of hiring only qualified 
interpreters as set forth in G.S. 8B-6. 

(c) t%) Interpreters who hold national 
certification from the N.R.I.D., ef Class A, or 
Class Advanced level from the N.C.I.C.S. with 
proven experience in the respective area they are 
being called to interpret are qualified interpreters 
for the purpose of meeting requirements of G.S. 
8B-6. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33. 

.0307 REVIEW AND APPEAL OF 

CLASSIFICATION DECISIONS 

(a) There shall be two bases upon which 
individuals may request a review of their 
classification: evaluator conduct and classification 
scoring. 

(1) {b) Evaluator Conduct. Evaluators are 
expected to conduct evaluations in a 



professional manner which will include 

but is not limited to: 

(4-A) refraining from discussion of the 

candidate before, during and after the 

classification process; 

(3B) maintaining alertness and attentiveness 

during the classification process; 

(3C) refraining from the display of any 

behavior which would negatively or 

positively influence the candidate; and 

(4D) maintaining confidentiality of all 

testing materials. 

(2) Classification Scoring, Results of 

NCICS candidate's performance are 

disputed due to dissatisfaction with the 

results awarded by the classification 

team. 

(eb) Requests for Informal Reviews. Applicants 

who are dissatisfied with their classification 

because of evaluator misconduct or classification 

scoring may request an informal review of their 

classification. The request shall be a written 

request sent to the State Coordinator within 30 

calendar days of the applicant's receipt of the 

classification results. The request shall indicate 

whether it is based on evaluator misconduct or 

classification scoring. 

(1) If the request is based on evaluator 
misconduct, the nature of the 
evaluator's misconduct shall be 
specified. 

(2) If the request is related to classification 
scoring, the applicant shall: 

(A) Request a private viewing of the 
videotaped performance at the mutual 
convenience of the NCICS candidate 
and the NCICS State Coordinator. 
This meeting must be requested in 
writing not more than 30 calendar 
days after the applicant's receipt of 
classification results. This meeting 
shall be conducted at the 
administrative offices of the Division. 

(B) Should the candidate after viewing the 
videotaped performance remain 
dissatisfied with the results due to 
classification scoring, the candidate 
shall request a review of the 
videotaped classification by a 
classification review team. 

(dc) Review of Evaluator Conduct. If an 
applicant has requested an informal review that 
involves evaluator conduct, the State Coordinator 
shall conduct an investigation of the alleged 
misconduct and provide a written response to the 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



655 



PROPOSED RULES 



applicant within 45 calendar days of the Division's 
receipt of the request. The State Coordinator may 
request one additional 45-calendar-day extension 
from the Division Director if additional time is 
needed to conduct the investigation. 
(ed) Review of Classification Scoring: 

(1) If an applicant has requested a review 
of the videotaped classification, the 
State Coordinator shall appoint a 
classification review team composed of 
three members of whom at least one 
shall be hearing and one 
hearing-impaired. 

(2) The applicant shall have the right to 
reject participation of any classification 
review team member if the applicant 
can show that there is a conflict of 
interest or other situation that might 
impair the objectivity of the team 
member. 

(3) If the classification level resulting from 
the review team's classification is the 
same as that of the original 
classification team, the original 
classification level shall be accepted. If 
a different classification level is 
selected, the applicant shall be allowed 
to retest without any waiting period. 

(4) The State Coordinator shall provide the 
applicant a written response regarding 
the review team's scoring within 60 90 
calendar days of the Division's receipt 
of the request. The State Coordinator 
may request one 50 45-calendar-day 
extension from the Division Director if 
additional time is needed to conduct the 
review. 

(fe) Appeals Hearing. An applicant who 
remains dissatisfied with the results of the informal 
review may request an appeals hearing according 
to the procedures in G.S. 150B, Article 3, and 10 
NCAC IB .0200. The request must be submitted 
within the time specified in G.S. 150B-23(f)- The 
Division Director shall make the final agency 
decision in the appeal. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33; 150B, Article 3. 

.0308 MAINTENANCE OF 
CLASSIFICATIONS 

(a) All classifications shall be valid for two 
years and all except that of Trainee and Novice 
Class may be renewed provided the candidate 
presents evidence of skill maintenance. 



(b) N.R.I.D. certified individuals shall be 
expected to meet the maintenance requirements in 
order to continue to be recognized as qualified 
interpreters until such time the NRID has imple- 
mented a maintenance of certification program . 

(c) Skill maintenance shall be determined based 
upon the awarding of points. A total of 40 points 
shall be required for renewal of classification. A 
minimum of 10 of these points shall be earned 
from documented interpreter experience and a 
minimum of 10 points shall be earned from profes- 
sional training . The Division shall award points as 
follows: 

( 1 ) one point for each ten hours of inter- 
preting experience. 

(2) one point for each one hour of training 
approved by the Division which is 
oriented toward enhancement of inter- 
preting practice, values and knowledge. 
Training which shall be recognized by 
the Division includes may include : 

(A) continuing education courses, 

(B) workshops, 

(C) seminars, 

(D) conferences, 

(E) lectures, 

(F) post secondary courses, 

(G) interpreter evaluation team participa- 
tion. 

(d) The candidate for reclassification shall 
submit evidence of skill maintenance to the State 
Coordinator at least 30 days before expiration of 
classification. 

(e) Forms for documentation of classification 
maintenance shall be available at any office of the 
Division. 

Statutory Authority G.S. 8B-1(3); 8B-6; 
143B-216.33. 

.0309 RECIPROCITY 

Classification shall be granted without direct 
evaluation of skills by the following methods: 
(1) Individuals who hold a certification from 
a certifying body of another state may 
apply for a temporary classification under 
the N.C.I.C.S. The State Coordinator 
shall determine the level of reciprocity 
for each applicant on a case-by-case 
basis. The State Coordinator shall 
determine as accurately as possible the 
equivalency of the North Carolina 
interpreter classification to that which the 
applicant holds and shall award 
reciprocity one class lower than the 



656 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



equivalency. Individuals shall make 
application to take the North Carolina 
interpreter classification within one year 
of being granted reciprocity. 
(2) Individuals holding nntional certification 
a Certificate of Interpretation and/ or a 
Certification of Transliteration from 
N.R.I.D. shall be recognized under the 
N.C.I.C.S. system as having a 
correlative relationship with the Class A 
level and/or Class Advanced respectively . 



Statutory Authority 
143B-216.33. 



G.S. 8B-1(3); 8B-6; 



TITLE 11 - DEPARTMENT 
OF INSURANCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of Insurance 
intends to amend rule cited as 11 NCAC 16 .0302. 

1 he proposed effective date of this action is 
October 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): 

A request for a public hearing must be made in 
writing, addressed to Ellen K. Sprenkel, N. C. 
Department of Insurance, P. O. Box 26387, Ra- 
leigh, NC 27611. This request must be received 
within 15 days of this notice. 

Reason for Proposed Action: To clarify current 
language. 

Lsomment Procedures: Written comments may be 
sent to Walter James, Actuarial Services, P.O. Box 
26387, Raleigh, NC 27611. Anyone having ques- 
tions may call Walter James at 919-733-3284 or 
Ellen Sprenkel at 919-733-4529. 

CHAPTER 16 - ACTUARIAL 
SERVICES DIVISION 

SECTION .0300 - SMALL 

EMPLOYER GROUP 

HEALTH INSURANCE 

.0302 RESTRICTIONS ON 
PREMIUM RATES 



(a) Each class of business shall have its own rate 
manual. The rate manual will be used to: 

(1) Audit the actuarial certification with 
regards to the relationship of one em- 
ployer group to the others within a 
class; and 

(2) Determine compliance with the relation- 
ship of one class to the other classes. 

(b) The requirement in G.S. 58-50- 130(b) (2) 
that within a class the premium rates charged 
during a rating period to small employers shall not 
vary from the index rate by more than 35 percent 
shall be met as follows: 

(1) The carrier shall calculate for each 
class of business, using the rate manual 
for that class, an index rate for each 
plan of benefits and for each small 
employer census within that class of 
business. 

(2) For each small employer within a given 
class of business, the carrier shall cal- 
culate the ratio of the premium rate 
charged the small employer during the 
rating period to the index rate for the 
census, plan of benefits, and class of 
business of that small employer calcu- 
lated in Subparagraph ( 1 ) of this Para- 
graph. 

(3) The ratio calculated in Subparagraph 
(2) of this Paragraph shall be between 
.65 and 1.35, inclusive. 

Other methods may be used if the results, using 
the method in this Paragraph, meet the require- 
ments of this Rule. 

(c) The requirement in G.S. 58-50-130(b)(l)that 
the index rate for a rating period for any class of 
business shall not exceed the index rate for any 
other class of business by more than 25 percent 
shall be met as follows: 

(1) The carrier shall define a representative 
census of its business and a representa- 
tive actuarially equivalent plan of bene- 
fits. 

(2) The carrier shall calculate an index rate 
based upon Subparagraph (1) of this 
Paragraph for each class of business. 

(3) The carrier shall identify the class of 
business with the lowest index rate. 

(4) The ratio of the index rate calculated 
for each class of business in Subpara- 
graph (2) of this Paragraph to the low- 
est index rate identified in Subpara- 
graph (3) of this Paragraph shall be 
between 1.00 and 1.25, inclusive. 

Any change in the representative census or repre- 



ss 



NORTH CAROLINA REGISTER 



July 15, 1993 



657 



PROPOSED RULES 



sentative actuarially equivalent plan of benefits 
used in Subparagraphs (1) through (4) of this 
Paragraph shall be specifically documented and the 
test must be performed on both the previous and 
new census or actuarially equivalent plan of 
benefits at the time of change; and the results of 
both tests shall be disclosed within the annual 
actuarial certification filing. Other methods may 
be used if the results, using the method in this 
Paragraph, meet the requirements of this Rule. 

(d) The acceptability of a proposed rate increase 
for a small employer for health benefit plans that 
satisfy Paragraphs (b) and (c) of this Rule, issued 
on or after January 1. 1992. shall be determined as 
follows: 

( 1 ) Calculate a new business premium rate 
for the new rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the new rating period. 

(2) Calculate a now business premium rate 
for the prior rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in effect at the 
beginning of the prior rating period. 
This product is the maximum renewal 
premium for the new rating period 
associated with G.S. 58-50- 130(b)(3)a 
and G.S. 58-50-130(b)(3)c. 

(4) Subparagraph (3) of this Paragraph may 
be adjusted by a percentage of the gross 
premium in force before renewal. This 
percentage shall not exceed 15 percent 
per year prorated for the months 
elapsed between the previous and the 
new rating dates. 

(5) Multiply Subparagraph (3) of this Para- 
graph by one plus the percentage in 
Subparagraph (4) of this Paragraph. 

The maximum renewal gross premium is Subpara- 
graph (5) of this Paragraph if Paragraph (b) of this 
Rule is satisfied. If the resulting maximum renew- 
al gross premium calculated in Subparagraph (5) of 
this Paragraph does not satisfy Paragraph (b) of 
this Rule, then the maximum renewal gross premi- 
um shall be adjusted until Paragraph (b) of this 
Rule is satisfied. Other methods may be used if 
the results, using the method in this Paragraph, 
meet the requirements of this Rule. 

(e) The acceptability of a proposed rate increase 



for a small employer for health benefit plans that 
exceed the limits in Paragraphs (b) and (c) of this 
Rule and were issued before January 1, 1992, shall 
be determined as follows: 

(1) Calculate a new business premium rate 
for the new rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the new rating period. 

(2) Calculate a new business premium rate 
for the prior rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in effect at the 
beginning of the prior rating period. 
This product is the maximum renewal 
premium for the new rating period 
associated with G.S. 58-50- 130(b)(7)a 
and G.S. 58-50-130(b)(7)b. 

The maximum renewal gross premium in Subpara- 
graph (3) of this Paragraph is not subject to Para- 
graphs (b) and (c) of this Rule during a three-year 
transition period ending January 1, 1995. After 
January 1, 1995, the acceptability of a proposed 
rate increase for a small employer shall be based 
only on Paragraph (d) of this Rule. Other methods 
may be used if the results, using the method in this 
Paragraph, meet the requirements of this Rule. 

Statutory Authority G.S. 58-2-40; 58-50-1 30(b). 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Environmental Man- 
agement Commission intends to amend rules cited 
as 15 A NCAC2B .0305, .0308, .0315 and .0316. 

1 he proposed effective date of this action is 
December 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person requesting that the Environ- 
mental Management Commission conduct a public 
hearing on any of these proposed amendments 
must submit a written request to Suzanne Keen, 



658 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



Division of Environmental Management, Water 
Quality, P.O. Box 29535, Raleigh, NC 27626- 
0535 by August 1 , 1993. The request must specify 
which rule the hearing is being requested on. 
Mailed written requests must be postmarked no 
later than August 1, 1993. 

Reason for Proposed Action: To amend the 
surface water quality classifications of specific 
waters across the state to protect their primary 
recreational uses. 

Ksomment Procedures: All persons interested in 
these proposed amendments are encouraged to 
submit written comments. Comments must be 
postmarked by August 16, 1993 and submitted to 
Suzanne Keen, Division of Environmental Manage- 
ment, Water Quality, P.O. Box 29535, Raleigh, 
NC 27626-0535. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE 
WATER STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF 
STREAM CLASSIFICATIONS 

.0305 WATAUGA RIVER BASIN 

(a) Places where the schedule may be inspected: 

(1) Clerk of Court: 

Avery County 
Watauga County 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources i 

Asheville Regional Office 
Interchange Building 
59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering the 
State of Tennessee are classified "C." 

(c) The Watauga River Basin Schedule of 
Classifications and Water Quality Standards was 
amended effective: 

(1) August 12, 1979; 

(2) February 1, 1986; 

(3) October 1, 1987; 

(4) August 1, 1989; 

(5) August 1, 1990; 

(6) December 1, 1990; 

(7) April 1, 1992; 

(8) August 3, 1992; 



(9) February 1, 1993; 

(10) December 1, 1993. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin 
was amended effective July 1, 1989 as follows: 

(1) Dutch Creek (Index No. 8-11) was 
reclassified from Class C-trout to Class 
B-trout. 

(2) Pond Creek (Index No. 8-20-2) from 
water supply intake (located just above 
Tamarack Road) to Beech Creek and all 
tributary waters were reclassified from 
Class WS-III to C. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin 
was amended effective December 1, 1990 with the 
reclassification of the Watauga River from the US 
Highway 321 bridge to the North 
Carolina/Tennessee state line from Class C to 
Class B. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin 
was amended effective April 1, 1992 with the 
reclassification of Pond Creek from Classes WS-III 
and C to Classes WS-III Trout and C Trout. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin 
was amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15 A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin has 
been amended effective February 1, 1993 with the 
reclassification of Boone Fork (Index No. 8-7) and 
all tributary waters from Classes C Tr HQW and 
C HQW to Classes C Tr ORW and C ORW. 

£i) The Schedule of Classifications and Water 
Quality Standards for the Watauga River Basin has 
been amended effective December 1^ 1993 with 
the reclassification of the Elk River from Peavine 
Branch to the North Carolina/Tennessee state line 
rindex No. 8-22-(3)l from Class C Tr to Class B 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



659 



PROPOSED RULES 



Tr. 



Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 

.0308 CATAWBA RIVER BASIN 

(a) Places where the schedules may be inspect- 
ed: 

(1) Clerk of Court: 

Alexander County 
Avery County 
Burke County 
Caldwell County 
Catawba County 
Gaston County 
Iredell County 
Lincoln County 
McDowell County 
Mecklenburg County 
Union County 
Watauga County 

(2) North Carolina Department of Environ- 
ment, Health, and Natural Resources: 

(A) Mooresville Regional Office 

919 North Main Street 
Mooresville, North Carolina 

(B) Asheville Regional Office 

Interchange Building 
59 Woodfin Place 
Asheville, North Carolina 

(b) Unnamed Streams. Such streams entering 
South Carolina are classified "C". 

(c) The Catawba River Basin Schedule of Classi- 
fications and Water Quality Standards was amend- 
ed effective: 

(1) March 1, 1977; 

(2) August 12, 1979; 

(3) April 1, 1982; 

(4) January 1, 1985; 

(5) August 1, 1985; 

(6) February 1, 1986; 

(7) March 1, 1989; 

(8) May 1, 1989; 

(9) March 1, 1990; 

(10) August 1, 1990; 

(11) August 3, 1992; 

(12) December 1, 1993. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective March 1, 1989 as follows: 

(1) Wilson Creek (Index No. 11 -38-34) and 
all tributary waters were reclassified 
from Class B-trout and Class C-trout to 
Class B-trout ORW and Class C-trout 
ORW. 



(e) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective May 1, 1989 as follows: 

(1) Henry Fork [Index Nos. 11-129-1-(1) 
and 11-1 29- 1 -(2)] from source to Laurel 
Creek, including all tributaries, were 
reclassified from Class WS-I, C and C 
trout to Class WS-I ORW, C ORW and 
C trout ORW, except Ivy Creek and 
Rock Creek which will remain Class C 
trout and Class C. 

(2) Jacob Fork [Index Nos. 1 1-129-2- (1) 
and 1 1-129-2-(4)] from source to Camp 
Creek, including all tributaries, were 
reclassified from Class WS-III trout and 
WS-III to WS-III trout ORW and 
WS-III ORW. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective March 1, 1990 as follows: 

(1) Upper Creek [Index No. ll-35-2-(l)] 
from source to Timbered Branch 
including all tributaries except 
Timbered Branch (Index No. 1 1-35-2-9) 
was reclassified from Class C Trout to 
Class C Trout ORW. 

(2) Steels Creek [Index No. 1 1-35-2-12(1)] 
from source to Little Fork and all 
tributaries was reclassified from Class 
C Trout to Class C Trout ORW. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Catawba River Basin was 
amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became 
effective on August 3, 1992. In some cases, 
streams with primary classifications other than WS 
were reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 

Quality Standards for the Catawba River Basin was 

amended effective December 1^ 1993 as follows: 

(1} Friday Lake rindex No. 1 1-125.51 from 

its source to Little Paw Creek was 

reclassified from Class C to Class B. 

The Linville River rindex No. 12-29- 



121 



660 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



(1)1 from Grandmother Creek to 
Linville Falls was reclassified from 
Class C Tr to Class B Tr. 



Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 

.0315 NEUSE RIVER BASIN 

(a) Places where the schedule may be inspected: 

(1) Clerk of Court: 

Beaufort County 
Carteret County 
Craven County 
Durham County 
Franklin County 
Granville County 
Greene County 
Johnston County 
Jones County 
Lenoir County 
Nash County 
Orange County 
Pamlico County 
Person County 
Pitt County 
Wake County 
Wayne County 
Wilson County 

(2) North Carolina Department of 
Environment, Health, and Natural 
Resources: 

(A) Raleigh Regional Office 

3800 Barrett Drive 
Raleigh, North Carolina 

(B) Washington Regional Office 

1424 Carolina Avenue 
Washington, North Carolina 

(C) Wilmington Regional Office 

127 Cardinal Drive 
Wilmington, North Carolina 

(b) The Neuse River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) December 13, 1979; 

(3) September 14, 1980; 

(4) August 9, 1981; 

(5) January 1, 1982; 

(6) April 1, 1982; 

(7) December 1, 1983; 

(8) January 1, 1985; 

(9) August 1, 1985; 

(10) February 1, 1986; 

(11) May 1, 1988; 

(12) July 1, 1988; 



(13) October 1, 1988; 

(14) January 1, 1990; 

(15) August 1, 1990; 

(16) December 1, 1990; 

(17) July 1, 1991; 

(18) August 3, 1992; 

(19) December 1, 1993. 

(c) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin has 
been amended effective July 1, 1988 as follows: 

(1) Smith Creek [Index No. 27-23-(l)] 
from source to the dam at Wake Forest 
Reservoir has been reclassified from 
Class WS-III to WS-I. 

(2) Little River [Index No. 27-57-(l)] from 
source to the N.C. Hwy. 97 Bridge 
near Zebulon including all tributaries 
has been reclassified from Class WS-III 
to WS-I. 

(3) An unnamed tributary to Buffalo Creek 
just upstream of Robertson's Pond in 
Wake County from source to Buffalo 
Creek including Leo's Pond has been 
reclassified from Class C to B. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin has 
been amended effective October 1, 1988 as 
follows: 

(1) Walnut Creek (Lake Johnson, Lake 
Raleigh) [Index No. 27-34-(l)]. Lake 
Johnson and Lake Raleigh have been 
reclassified from Class WS-III to Class 
WS-III & B. 

(2) Haw Creek (Camp Charles Lake) 
(Index No. 27-86-3-7) from the 
backwaters of Camp Charles Lake to 
dam at Camp Charles Lake has been 
reclassified from Class C to Class B. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin has 
been amended effective January 1, 1990 as 
follows: 

(1) Neuse-Southeast Pamlico Sound ORW 
Area which includes all waters within a 
line beginning at the southwest tip of 
Ocracoke Island, and extending north 
west along the Tar-Pamlico River Basin 
and Neuse River Basin boundary line to 
Lat. 35° 06' 30", thence in a southwest 
direction to Ship Point and all 
tributaries, were reclassified from Class 
SA NSW to Class SA NSW ORW. 

(2) Core Sound (Index No. 27-149) from 
northeastern limit of White Oak River 
Basin (a line from Hall Point to Drum 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



661 



PROPOSED RULES 



Inlet) to Pamlico Sound and all 
tributaries, except Thorofare, John Day 
Ditch were reclassified from Class SA 
NSW to Class SA NSW ORW. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin was 
amended effective December 1, 1990 with the 
reclassification of the following waters as 
described in (1) through (3) of this Paragraph. 

(1) Northwest Creek from its source to the 
Neuse River (Index No. 27-105) from 
Class SC Sw NSW to Class SB Sw 
NSW; 

(2) Upper Broad Creek [Index No. 
27-106-(7)] from Pamlico County SR 
1103 at Lees Landing to the Neuse 
River from Class SC Sw NSW to Class 
SB Sw NSW; and 

(3) Goose Creek [Index No. 27-107-fl 1)] 
from Wood Landing to the Neuse River 
from Class SC Sw NSW to Class SB 
Sw NSW. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin was 
amended effective July 1, 1991 with the 
reclassification of the Bay River [Index No. 
27-150-0)] within a line running from Flea Point 
to the Hammock, east to a line running from Bell 
Point to Darby Point, including Harper Creek, 
Tempe Gut, Moore Creek and Newton Creek, and 
excluding that portion of the Bay River landward 
of a line running from Poorhouse Point to Darby 
Point from Classes SC Sw NSW and SC Sw NSW 
HQW to Class SA NSW. 

(h) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin was 
amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100. .0200 and .0300) which became 
effective on August 3, 1992. In some cases, 
streams with primary classifications other than WS 
were reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(i) The Schedule of Classifications and Water 
Quality Standards for the Neuse River Basin was 
amended effective December 1, 1993 as follows: 



Hi Lake Crabtree rindex No. 27-33-0)1 
was reclassified from Class C NSW to 
Class B NSW. 

(2) The Eno River from Orange County 
State Road 1561 to Durham County 
State Road 1003 rindex No. 27-10-06)1 
was reclassified from Class WS-IV 
NSW to Class WS-IV&B NSW. 

(3) Silver Lake [Index No. 27-43-51 was 
reclassified from Class WS-III NSW to 
Class WS-HI&B NSW. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 

.0316 TAR-PAMLICO RIVER BASIN 

(a) Places where the schedule may be inspected: 

(1) Clerk of Court: 

Beaufort County 
Dare County 
Edgecombe County 
Franklin County 
Granville County 
Halifax County 
Hyde County 
Martin County 
Nash County 
Pamlico County 
Person County 
Pitt County 
Vance County 
Warren County 
Washington County 
Wilson County 

(2) North Carolina Department of 
Environment, Health, and Natural 
Resources: 

(A) Raleigh Regional Office 

3800 Barrett Drive 
Raleigh, North Carolina 

(B) Washington Regional Office 

1424 Carolina Avenue 
Washington, North Carolina 

(b) Unnamed Streams. All drainage canals not 
noted in the schedule are classified "C Sw," except 
the main drainage canals to Pamlico Sound and its 
bays which will be classified "SC." 

(c) The Tar-Pamlico River Basin Schedule of 
Classification and Water Quality Standards was 
amended effective: 

(1) March 1, 1977; 

(2) November 1, 1978; 

(3) June 8, 1980: 

(4) October 1, 1983; 

(5) June 1, 1984; 



662 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



(6) August 1, 1985; 

(7) February 1, 1986; 

(8) August 1, 1988; 

(9) January 1, 1990; 

(10) August 1, 1990; 

(11) August 3, 1992; 

(12) December 1, 1993. 

(d) The Schedule of Classifications and Water 
Quality Standards for the Tar-Pamlico River Basin 
has been amended effective August 1, 1988 as 
follows: 

(1) Tar River (Index No. 28-94) from a 
point 1.2 miles downstream of Broad 
Run to the upstream side of Tranters 
Creek from Class C to Class B. 

(e) The Schedule of Classifications and Water 
Quality Standards for the Tar-Pamlico River Basin 
has been amended effective January 1 , 1990 by the 
reclassification of Pamlico River and Pamlico 
Sound [Index No. 29-(27)] which includes all 
waters within a line beginning at Juniper Bay Point 
and running due south to Lat. 35° 18' 00", long. 
76° 13' 20", thence due west to lat. 35° 18' 00", 
long 76° 20' 00", thence northwest to Shell Point 
and including Shell Bay, Swanquarter and Juniper 
Bays and their tributaries, but excluding the 
Blowout, Hydeland Canal, Juniper Canal and 
Quarter Canal were reclassified from Class SA and 
SC to SA ORW and SC ORW. 

(f) The Schedule of Classifications and Water 
Quality Standards for the Tar-Pamlico River Basin 
has been amended effective January 1, 1990 by 
adding the supplemental classification NSW (Nutri- 
ent Sensitive Waters) to all waters in the basin 
from source to a line across Pamlico River from 
Roos Point to Persimmon Tree Point. 

(g) The Schedule of Classifications and Water 
Quality Standards for the Tar-Pamlico River Basin 
was amended effective August 3, 1992 with the 
reclassification of all water supply waters (waters 
with a primary classification of WS-I, WS-II or 
WS-III). These waters were reclassified to WS-I, 
WS-II, WS-III, WS-IV or WS-V as defined in the 
revised water supply protection rules, (15A NCAC 
2B .0100, .0200 and .0300) which became effec- 
tive on August 3, 1992. In some cases, streams 
with primary classifications other than WS were 
reclassified to a WS classification due to their 
proximity and linkage to water supply waters. In 
other cases, waters were reclassified from a WS 
classification to an alternate appropriate primary 
classification after being identified as downstream 
of a water supply intake or identified as not being 
used for water supply purposes. 

(h) The Schedule of Classifications and Water 



Quality Standards for the Tar-Pamlico River Basin 
was amended effective December 1^ 1993 with the 
reclassification of Blounts Creek from Herring Run 
to Blounts Bay flndex No. 29-9-1 -(3)1 from Class 
SC NSW to Class SB NSW. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
143-215. 3(a)(1). 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as 15A NCAC 10F .0102 - .0103, .0301. 

1 he proposed effective date of this action is 
October 1, 1993. 

A he public hearing will be conducted at 10:00 
a.m. on August 2, 1993 at the Archdale Building, 
Room 332, 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 

K.eason for Proposed Action: 

15A NCAC 10F .0102 - .0103 - To extend the 

temporary certificates of number for vessels from 

30 days to 60 days. 

ISA NCAC 10F .0301 - To require designated 

suitable agencies to obtain written permission prior 

to marking a duly established no-wake zone. 

Lsomment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
July 15, 1993 to August 14, 1993. Such written 
comments must be delivered or mailed to the N. C. 
Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10F - MOTORBOATS AND 
WATER SAFETY 

SECTION .0100 - MOTORBOAT 
REGISTRATION 

.0102 APPLICATION FOR CERTIFICATE 
OF NUMBER 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



663 



PROPOSED RULES 



(a) General : 

(1) Except as provided in Subparagraph (2) 
of this Paragraph, the owner of any 
motorboat principally used in the State 
of North Carolina shall, prior to its use, 
apply for a certificate of number on an 
official application form provided by 
the Wildlife Resources Commission. 

(2) Motorboats owned by the United States, 
a state, or a subdivision thereof are 
exempt from required numbering, but 
may be numbered under the provisions 
of Rule .0104(a)(5) of this Section. 
Motorboats owned and operated by 
non-profit rescue squads are required to 
be numbered, but if they are operated 
exclusively for rescue purposes, includ- 
ing rescue training, they may be num- 
bered without charge as by a govern- 
mental entity as provided by Rule .0104 
(a)(5) of this Section. 

(3) Pending receipt of a regular certificate 
of number, a motorboat may be operat- 
ed for not more than 50 60 days under 
a temporary certificate of number. (See 
Rule .0103 of this Section) 

(4) Application forms may be obtained by 
applying to the Wildlife Resources 
Commission at the address shown in 
Subparagraph (a)(5) of this Rule, to any 
boat dealer or boat manufacturer who is 
qualified as an agent for the purpose of 
issuing temporary certificates of num- 
ber [See Rule .0103(d) of this Section], 
or to any North Carolina certified 
hunting and fishing license agent. 

(5) The completed application shall be 
forwarded to: Motorboat Registration 
Section, Wildlife Resources Commis- 
sion, Archdale Building, 512 North 
Salisbury Street, Raleigh, North Caroli- 
na 27611. 

(b) Individual Owners. The application shall 
contain the following information: 

( 1 ) name of owner; 

(2) address of owner, including zip code; 

(3) date of birth of owner; 

(4) citizenship of owner; 

(5) state of principal use of vessel; 

(6) present or previous boat number (if 
any); 

(7) desired period of registration (one or 
three years); 

(8) use of vessel (pleasure, livery, demon- 
stration, commercial passenger, com- 



mercial fishing, other); 

(9) make of vessel (if known); 

(10) year of manufacture or model year (if 
known); 

(11) manufacturer's hull identification num- 
ber (if any); 

(12) overall length of vessel; 

(13) type of vessel (open, cabin, house, 
other); 

(14) hull material (wood, steel, aluminum, 
fiberglass, plastic, other); 

(15) type of propulsion (inboard, outboard, 
inboard-outdrive, sail, and engine make 
if available); 

(16) type of fuel (gasoline, diesel, other); 

(17) certification of ownership; 

(18) signature of owner. 

(c) Livery Motorboat Owners. The registration 
and numbering requirements of this Section shall 
apply to livery motorboats, except that in any case 
where the motor is not rented with the vessel, the 
description of the motor and type of fuel may be 
omitted from the application. 

(d) Dealers and Manufacturers 

(1) The registration and numbering require- 
ments of this Section shall apply to 
dealers in and manufacturers of motor- 
boats. 

(2) Application for a certificate of number 
shall be made on the approved applica- 
tion form prescribed in this Regulation. 
Dealers and manufacturers shall certify 
that they are dealers or manufacturers, 
whichever the case may be. 

(3) The application, accompanied by a fee 
of five dollars and fifty cents ($5.50), 
or thirteen dollars ($13.00) in check or 
money order as appropriate in accor- 
dance with the provisions of Subpara- 
graph (2) of Paragraph (a) of this Rule, 
shall be forwarded to the address stated 
in this Rule. [see Subparagraph 
.0102(a)(5) of this Rule]. 

(4) Upon receipt by the Wildlife Resources 
Commission of a properly completed 
application and fee, it shall issue to the 
applicant a dealer's or manufacturer's 
certificate of number as appropriate, 
which may be used in connection with 
the operation of any motorboat in the 
possession of such dealer or 
manufacturer, when the boat is being 
used for demonstrative purposes. 
Additional dealers' or manufacturers' 
certificates of number may be obtained 



664 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



> 



) 



I 



by making application in the same 
manner as prescribed for the initial 
certificate with payment of an 
additional fee of five dollars and fifty 
cents ($5.50), or thirteen dollars 
($13.00) in check or money order as 
appropriate in accordance with the 
provisions of Subparagraph (2) of 
Paragraph (a) of this Rule, for each 
additional certificate. 

(5) Dealers and manufacturers have the 
option of registering individual 
motorboats on a permanent basis under 
the provisions of Paragraph (b) of this 
Rule. 

(6) A "manufacturer" as the term is used in 
these regulations is defined as a person, 
firm, or corporation engaged in the 
business of manufacturing vessels either 
upon prior commission or for the 
purpose of selling them after 
manufacture. A "dealer" as the term is 
used in these regulations is defined as a 
person, firm, or corporation engaged in 
the business of offering vessels for sale 
at retail or wholesale from an 
established location or locations. 

Authority G.S. 75A-3; 75A-5; 75A-7; 75A-19; 33 
C.F.R. 174.17. 

.0103 TRANSFER OF OWNERSHIP 

(a) Transfer Direct from One Individual Owner 
to Another Individual Owner 

(1) If the ownership of a registered 
motorboat is changed during the 
registration period, the owner shall 
complete the statement of transfer on 
the reverse side of the certificate of 
number, date as of the day of the 
transaction, sign, and deliver to the new 
owner. 

(2) The new owner shall apply for a new 
certificate of number on an official 
application form. The original number 
must be retained when a vessel 
numbered is again registered as a 
motorboard motorboat . 

(3) For 50 60 days following the transfer of 
ownership of a registered motorboat 
during the registration period, the new 
owner may use the certificate of 
number of the prior owner as a 
temporary certificate of number 
pending receipt of his own certificate; 



provided, the certificate is endorsed in 
accordance with Subparagraph (a)(1) of 
this Rule. In the event the transfer 
occurs during the 30 60 days prior to 
expiration of the registration period, the 
original certificate will still be honored 
up to the full period of 30 60 days as a 
temporary certificate even though it 
would otherwise have expired. Where 
transfer of ownership from one 
individual to another occurs after the 
expiration of the registration period, the 
certificate of number may not be used 
by the new owner. 

(b) Transfer of a Previously-Registered 
Motorboat Through a Dealer 

(1) The owner transferring his motorboat to 
a dealer during the registration period 
shall give the certificate of number to 
the dealer after dating and signing the 
statement of transfer on the reverse side 
of the certificate on the day of the 
transaction. 

(2) When the motorboat is sold by the 
dealer, he shall date and sign the 
certificate of number on the reverse 
side on the day of the transaction and 
deliver it to the new owner. 

(3) For a period of 30 60 days following 
the transfer of ownership of a registered 
motorboat from or through a dealer to 
a new owner, the new owner may use 
the certificate of the prior individual 
owner as a temporary certificate of 
number pending receipt of his own 
certificate; provided: 

(A) The certificate is endorsed in 
accordance with Subparagraphs (1) 
and (2) of this Paragraph. 

(B) The original owner endorsed the 
certificate to the boat dealer while it 
was still in force, and 

(C) The boat dealer's sale and 
endorsement occurs while the 
registration certificate is still in force. 

(4) Except as permitted above, a certificate 
of number may not be used after the 
expiration of the registration period. 

(c) Transfer of an Individually-Registered 
Motorboat by a Dealer or Manufacturer. 
Motorboats individually numbered by dealers or 
manufacturers shall upon transfer of ownership be 
governed by the provisions of Paragraph (a) of this 
Rule. 

(d) Temporary Certificate of Number 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



665 



PROPOSED RULES 



(1) Upon acquisition of a motorboat not 
previously numbered or a motorboat the 
registration of which has expired, the 
new owner may transmit with his 
application for the regular certificate of 
number a request for a temporary 
certificate of number. The request 
must state the date the vessel was 
acquired by the applicant. For a period 
not exceeding 30 60 days following the 
date of acquisition, the motorboat may 
be operated on the temporary certificate 
of number pending receipt of the 
regular certificate from the Wildlife 
Resources Commission. 

(2) In order to make temporary certificates 
of number available locally within the 
State, boat dealers and manufacturers 
who conduct business from established 
locations in North Carolina may be 
designated agents of the Wildlife 
Resources Commission for the purpose 
of issuing temporary certificates of 
motorboat number. To qualify as an 
agent for this purpose, such dealer or 
manufacturer must enter into a written 
agreement with the Wildlife Resources 
Commission by which he assumes 
responsibility for conducting the boat 
registration agency as a public service 
and in strict compliance with these 
regulations. Upon approval and 
ratification of such agreement by the 
Executive Director or his designee, the 
agent will be furnished with a supply of 
the temporary certificate forms together 
with forms for use in applying for the 
regular certificate of motorboat number. 
The forms for temporary certificate of 
number are serially numbered and are 
prepared in triplicate so as to provide 
an original (Part 1) and two copies 
(Parts 2 and 3). 

(3) The A boat registration agency fer 
issuing temporary certificates of 
motorboat number shall be conducted in 
accordance with the following 
requirements and restrictions: 

(A) The temporary certificates of number 
shall be issued without charge. 

(B) There shall be no substitute for the 
printed form of certificate supplied by 
the Wildlife Resources Commission. 
No agent shall issue any other writing 
purporting to authorize the use of an 



unregistered motorboat. 

(C) The certificates shall be issued 
consecutively in the order in which 
they are serially numbered, beginning 
with the lowest number. 

(D) When the vessel has been acquired 
from a source other than the agent, a 
temporary certificate of number shall 
not be issued unless and until the 
owner produces a bill of sale or other 
memorandum of transfer which 
identifies the vessel and which has 
been dated, signed and acknowledged 
by the transferor before a notary 
public or other officer authorized to 
take acknowledgements. 

(E) All information called for on the 
temporary certificate of number shall 
be properly entered in the spaces 
provided, including the date of 
expiration of the certificate which 
shall be the 30th 60th day following 
the date of acquisition of the vessel by 
the owner. 

(F) The temporary certificate must be 
signed by the owner. The agent shall 
deliver to the owner Part 1 of the 
certificate and a form with which to 
apply for the regular certificate of 
number. 

(G) Within 30 days following the issuance 
of a temporary certificate of number, 
the agent shall transmit Part 2 thereof 
to the Wildlife Resources Commission 
at the address indicated in Rule 
.0102(a)(5) of this Section. If a bill 
of sale or other memorandum of 
transfer has been required, the 
original or a copy thereof shall be 
attached to the commi ss ion' s 
Commission's copy of the temporary 
certificate of number. 

(H) The agent shall retain Part 3 of the 
temporary certificate of number for a 
period of at least one year and shall 
permit inspection thereof during 
business hours by any law 
enforcement officer or authorized 
personnel of the commi ss ion 
Commission . 

(I) No agent shall knowingly issue more 
than one temporary certificate of 
number for the same vessel during 
any calendar year. 

(J) No agent shall assume responsibility 



666 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



* 



> 



I 



for making application for a regular 
certificate of motorboat number on 
behalf of any owner. 
(K) Upon termination of ae a boat 
registration agency te — issue which 
issues temporary certificates of 
motorboat number, all copies (Parts 
3) of such certificates theretofore 
issued and all unused forms for 
temporary certificates of number then 
remaining in possession of the 
terminated agency shall be delivered 
to the Wildlife Resources Commission 
or to a commission Commission 
employee. 

(4) Ah A boat registration agency fef 
i ss uing which issues temporary 
certificates of motorboat number, being 
a mutual and voluntary undertaking, 
may be terminated at any time, with or 
without cause, by either party thereto 
by giving a notice of such termination 
to the other party. 

(5) Every owner of a motorboat who 
obtains a temporary certificate of 
number from a local agent as provided 
by this Section shall, not later than 24 
hours thereafter, transmit his 
application for the regular certificate of 
motorboat number, together with the 
appropriate fee, to the Wildlife 
Resources Commission at the address 
indicated in Rule .0102(a)(5) of this 
Section. 

(6) In order to be valid, the temporary 
certificate of boat number must contain 
the following: 

(A) full name and address of issuing 
agent; 

(B) full name and address of purchaser, 
including zip code; 

(C) previous registration number, if any 
(if none, so state); 

(D) state of principal use of vessel; 

(E) make of vessel; 

(F) length in feet; 

(G) hull material; 

(H) kind of propulsion; 

(I) date of purchase of boat; 

(J) date of application for regular 

certificate of number; 
(K) expiration date of temporary 

certificate; 
(L) signature of purchaser. 

(7) Temporary certificates of number can 



be issued by boat registration agents 
when certificates of number requiring 
corrections other than address or name 
changes are presented for renewal or 
when the agent finds that an error has 
been made in validating the certificate 
of number. Agent s issuing temporary 
certificates of number under this section 
must comply with 15A NCAC 10G 
.020 4 (c)(5). 
(e) Demonstration and Use of Vessels Held by 
Dealers 

(1) Demonstration of registered motorboats 
held by dealers for sale may be with the 
use of the certificate of number 
endorsed by the original owner so long 
as the registration is in force. Any 
dealer or any permittee of a dealer 
demonstrating a motorboat must utilize 
a set of dealer's numbers and the 
corresponding dealer's certificate of 
number on such vessel after the original 
certificate of number has expired. The 
dealer's numbers and certificate of 
number may, however, be used during 
demonstrations before the end of the 
registration period at the option of the 
dealer. In any event, where a set of 
dealer's numbers is used upon a 
previously-numbered vessel, the 
original numbers must be covered in 
accordance with Rule .0106(c) of this 
Section. 

(2) Dealers who have bought or otherwise 
possess motorboats for resale and who 
wish to operate or lend out such 
motorboats for more general uses than 
for demonstration only must have the 
individual motorboat registrations 
transferred to their names. 

Authority G.S. 75A-3; 75A-5; 75A-19; 33 C.F.R. 
174.21. 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0301 GENERAL PROVISIONS 

(a) Applicability. Except as limited by the 
subject matter, all of the provisions of this Rule 
apply to all public waters located within the 
territorial limits of the counties and municipalities 
in which special regulations are set forth for 
specific waters or regulated areas by the 
succeeding rules. 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



667 



PROPOSED RULES 



(b) Definitions. Unless the context requires 
otherwise, the definitions used in Chapter 75A of 
the General Statutes of North Carolina apply 
within these regulations. In addition, the 
following definitions apply in these regulations: 

(1) Commission. North Carolina Wildlife 
Resources Commission; 

(2) Executive Director. Executive director 
Director of the commission 
Commission ; 

(3) No-Wake Speed. Idle speed or a slow 
speed creating no appreciable wake; 

(4) Uniform System. Uniform Waterway 
Marking System and the supplementary 
standards for such system promulgated 
by the commission Commission . 

(c) Marking of Regulated Areas. The Executive 
Director may designate agencies for placement and 
maintenance of markers for regulated areas 
established by rules promulgated pursuant to this 
Section. The agency designated by the Executive 
Director may delegate the actual placement and 
maintenance of such markers to some other 
agency, corporation, group or individual, so long 
as the designating agency exercises supervisory 
authority over such agency, corporation, group or 
individual. Prior to marking a restricted zone 
established pursuant to G.S. 75A-15, the 
designated agency for placement and maintenance 
of the markers must obtain written approval from 
the Executive Director by making a written request 
for permission to mark the area specifically 
described therein. Enforcement of the restrictions 
set forth in Rule .0302 et seq. of this Section is 
dependent upon placement and maintenance of 
adequate marking of the regulated areas by suitable 
agencies, as designated in those rules, in 
accordance with the requirements of the Uniform 
Waterway Marking System and the supplementary 
standards for such system promulgated by the 
Commission. Unless a specific variance is 
granted, placement and maintenance of the 
markers must be and remain in accordance with 
the uniform system. The Executive Director or his 
representative is instructed to supervise and 
approve placement and maintenance of individual 
markers to insure full implementation of the 
objectives of the uniform system. 

(d) Implementation of Uniform Waterway 
Marking System. Except where done by virtue of 
the supervening federal authority, it is unlawful for 
anyone to place, maintain, or to allow to remain in 
place, any regulatory markers or navigational aids 
of the sort included in the uniform system in any 
waters without authorization of the Commission. 



The Executive Director is authorized to approve 
placement of the navigational aids, informational 
markers, and regulatory markers warning of 
dangers and not requiring enforcement sanctions, 
in accordance with both public interest in 
recreational use and water safety and in accordance 
with the policies embodied in the uniform system. 

(e) Removal of Unauthorized Markers. Markers 
or navigational aids which do not conform to the 
specifications of the uniform system or which are 
placed without lawful authority or permission, 
where the person responsible for the actual 
placement cannot be feasibly determined, may be 
removed by agents of the Commission. 
Nonconforming markers as to which the person 
responsible for placement and maintenance is 
known, may nevertheless be removed by agents of 
the Commission if such markers are likely to 
mislead the public or cause a dangerous situation. 
Where agents of the Commission discover 
authorized markers which have been improperly 
placed or are defective through lack of 
maintenance, such agents may serve written notice 
upon the person responsible for such improper 
placement or for the maintenance of the marker 
concerned. If, within 10 days no action has been 
taken in accordance with the notice given, such 
default constitutes a violation of these regulations. 

(f) Miscellaneous Restrictions. Except for 
mooring buoys or markers as to which it is 
specifically permitted, it is unlawful to tie a vessel 
to any waterway marker. It is unlawful for any 
unauthorized person to move, remove, damage, 
obstruct, paint over, or in any way tamper with 
any marker lawfully placed in the waters of North 
Carolina in conformity with these regulations or 
the uniform system generally. 

(g) Supplementary Standards. The standards 
listed in this Paragraph are supplementary to the 
Uniform Waterway Marking System and shall be 
applicable as indicated in the succeeding rules of 
this Section to the areas of water thereby 
regulated: 

(1) The perimeter of swimming areas in the 
water must be marked with float lines 
which, in conjunction with the 
shoreline, form a completely enclosed 
area. The total enclosed area may not 
exceed 5,000 square feet without 
special permission from the Executive 
Director or his authorized 
representative. In any event, such area 
may not extend out into the water 
sufficiently as to restrict travel unduly 
on any regular navigational channel or 



668 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



> 



) 



> 



otherwise to obstruct passage of vessels 
in reasonably using the waters. 

(2) Float lines must have attached floats 
along their length at intervals of not 
less than one every 10 feet. 

(3) Floats must be buoyant enough to float 
at the surface of the water while 
attached to the float line, but no float 
may exceed a size of 18 inches as 
measured across its largest dimension. 

(4) Floats may be solid or hollow and 
preferably should be of plastic or other 
light and resilient material not likely to 
cause injury should one strike a 
swimmer in the water. 

(5) Floats must be either solid white or 
solid international orange in color. 
Float lines may consist of all white 
floats or of alternating white and orange 
floats. 

(6) Buoys or floating signs indicating the 
"boats-keep-out" symbol of the uniform 
system and in conformity with its 
standards must be attached to the float 
lines at such points as necessary to give 
warning to the vessels approaching the 
swimming area from various directions. 

(7) Float lines and warning markers must 
be anchored securely to prevent them 
from shifting position to any apprecia- 
ble extent under normal conditions. 

(8) All markers warning of a no-wake 
speed zone around certain facilities 
must be buoys or floating signs placed 
in the water at a distance of not greater 
than 50 yards from the protected facili- 
ty. The markers must be sufficient in 
number and size as to give adequate 
warning of the restriction to the vessels 
approaching from various directions. 

(9) The boundaries of mooring areas may 
be defined by the placement of the 
speed zone warning markers themselves 
or by such warning markers plus addi- 
tional boundary floats or markers that 
may be approved by the Executive 
Director or his representative. 

Statutory Authority G.S. 75A-3; 75A-15. 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

Jylotice is hereby given in accordance with G.S. 



150B-21.2 that the North Carolina Department of 
Transportation intends to amend rules cited as 19 A 
NCAC2D .0602, .0607. 

1 he proposed effective date of this action is 
November 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and mailed to N. C. Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611, Attn: Emily Lee. The demand must be 
received within 15 days of this Notice. 

K.eason for Proposed Action: 
19 A NCAC 2D .0602 - States responsibility for 
injury and damage for oversize permit vehicles. 
19 A NCAC 2D .0607 - Clarifies conditions of 
oversize/overweight vehicles and adds additional 
weight and axle information. 

Ksomment Procedures: Any interested person may 
submit written comments on the proposed rules by 
mailing the comments to: N. C. Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611 , Attn: Emily Lee, within 30 days after the 
proposed rule is published or until the date of any 
public hearing held on the proposed rule, whichev- 
er is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY 
OPERATIONS 

SECTION .0600 - 
OVERSIZE-OVERWEIGHT PERMITS 

.0602 PERMITS-ISSUANCE AND FEES 

(a) Permits may be issued ef for movements of 
loads which cannot be reasonably divided, disman- 
tled or disassembled, or so loaded to meet legal 
requirements. Permits are issued on authorized 
forms with appropriate designation for qualifying 
moves. To be valid, a permit must be signed by 
the permittee and carried in the towing unit while 
permitted load is in transit. A permit issued by 
the Department is not valid for travel over munici- 
pal streets (Defined as streets or highways not 
maintained by the State of North Carolina). 
Permitted vehicles will not travel in convoy. The 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



669 



PROPOSED RULES 



permittee for any oversize/overweight movement 
assumes all responsibility for injury to persons or 
damage to property of any kind and agrees to hold 
the Department harmless for any claims arising out 
of his conduct or actions. 

Single trip permits may include a return trip to 
origin if requested at the time of original issuance 
and the return trip can be made within the valida- 
tion of such permit. No single trip permit request 
will be issued for a time period to exceed 30 days. 
Annual permits (blanket) are valid 12 months from 
the date of issuance. 

City Passenger Buses which exceed the weight 
limits in G.S. 20-1 18(f) may be issued permits for 
operation on the highways of the state in the 
vicinity of the municipality and to qualify the 
vehicle for license. 

f4-) Single trip permits may include a return 

trip to origin if requested at the time of 
original issuance and the return trip can 
be made within the validation of such 
permit. — No single trip permit request 
will be issued for a time period to 
exceed 30 days. 

(3) Annual permits (blanket) are valid 12 

months — from — the — date — of i s suance. 
They may be i s sued for: 
{A) — Permitted loads up to 10' wide autho 

rizing travel on all roads; 
{&) — Up to but not to exceed a width of a 
12' authorizing travel on North Caro 
kfra; — Interstate — and — US — highways. 
Provided, mobile/modular homes not 
to exceed a width of a 1 4 ' unit with 
an allowable — roof overhang not to 
exceed 12" may also be authorized to 
travel on de s ignat e d North Carolina, 
Interstate and US highways. 

0) City Passenger Buses which exceed the 

weight limits in GS 20 118(f) may be 

issued permits for operation on the 

highways of the state in th e vicinity of 

the — municipality — and — te — qualify the 

vehicle for license. 

(b) A fee will be collected as specified in G.S. 

20-1 19(b). Only cash, certified check, money 

order or company check will be accepted. No 

personal checks will be accepted. Permittees with 

established credit accounts will be billed monthly 

for permits issued for the previous month. A4i 

fees collected are to be processed in accordance 

with DOT Field Policy Procedure Manual. Chapter 

6, Section 22. Provided, the following exemptions 

of fee s shall apply to permit s i ss ued: 

fh For house moves; 



{3} For movement of farm equipment by 

the farmer for agricultural purposes; 

0} To any agency of the United State 

Government; 

{4) The State of North Carolina or it s 

agencies, institutions, or municipalities, 
provided the vehicle/vehicle combina 
tion is regi s tered in the name of such 
government body. 

Statutory Authority G.S. 20-119; 136-18(5). 



670 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



.0607 PERMITS-WEIGHT, DIMENSIONS AND LIMITATIONS 

(a) Width is limited to 15' for all movements except Qualifying vehicle/vehicle combinations are limited 
to a maximum width of 15J, with exceptions for certain construction machinery, buildings, structures, 
manufacturing machinery for moves authorized by the Central Permit Office or Head of the Maintenance Unit . 
If blades of bulldozers, graders construction equipment or front end loader buckets cannot be angled to extend 
no more than 12' across the roadway, they must shall be removed. A blade or bucket or other attachment 
which has been removed for safety reasons, or if in the best interests to the Department has been removed, 
may be moved hauled with the equipment without being considered a divisible load. Movc3 exceeding 12' 
for a commodity essential to national health, safety or defense may be permitted upon receipt of proof of 
necessity submitted by the agency directly concerned, however, if considered to be detrimental or unsafe to 
the other traveling public or if the highway cannot accommodate the move due to width or weight, such move 
will be denied. Moves exceeding 12' in width may be denied if considered by the issuing agent to be unsafe 
to the traveling public or if the highway cannot accommodate the move due to width. Loads must be so 
placed on vehicle/vehicle combination so as to present least over dimension to traffic. 

(1) Single trip - width not to exceed 15' for all movements unless authorized by the Central Permit 
Office. Exception: "Housemoves" shall be approved by Division and District field offices. 

(2) Annual permits z not to exceed a maximum width of \2_ authorizing travel on all highways jn 
North Carolina. Provided: Mobile/modular homes may not exceed a width of a 14' unit with an 
allowable roof overhang not to exceed a total of 12" may be authorized to travel on designated 
North Carolina, Interstate and US Highways. 

(b) The maximum weight permitted on a designated route is determined by the bridge capacity of bridges 
to be crossed during movement. Moves exceeding weight limits for highways or bridge structures may be 
denied if considered by the issuing agent unsafe and may cause damage to such highway or structure. A 
surety bond may be required to cover the cost of damage to pavement, bridges or other damages incurred 
during the permitted move. 

(1) The maximum single trip and annual permit weight allowed for vehicle or vehicle combinations not 
to include including off highway construction equipment without an engineering study is: 
Single axle 25,000 lbs. 

2 axle tandem 50,000 lbs. 

3 or more axle group 60,000 lbs. 

3 axle vehicle 60,000 lbs. 

4 axle vehicle 75,000 lbs. 

5 axle vehicle 94,500 lbs. 

6 axle vehicle 103,000 lbs. 

6 axle vehicle 108,000 lbs. 

7 or more axle vehicle 122,000 lbs. 

(2) The maximum permit weight allowed for off highway construction equipment is: 
(A) Self-propelled scrapers with low pressure tires: 

Single axle 37,000 lbs. 

2 axle vehicle 55,000 lbs. 

3 axle vehicle 70,000 lbs. 

4 axle vehicl e 90,000 lbs. 

Tandem axle 50,000 lbs. 

2 AXLE VEHICLE 

extreme wheelbase less than 10' 65,000 lbs. 

10' or greater 70,000 lbs. 

3 AXLE VEHICLE 
single/tandem axle configuration 

extreme wheelbase less than 16' 75,000 lbs. 

16' or greater 80,000 lbs, 

single/single/single axle configuration engineering study 

4 AXLE VEHICLE 



8:8 NORTH CAROLINA REGISTER July 15, 1993 671 



PROPOSED RULES 



extreme wheelbase 28' or greater 90,000 lbs, 

single axle 37,000 lbs. 

(B) Self-propelled truck cranes with counterweights and boom removed (if practical): m 

3 axles — not to exceed 25,000 lbs. per axle maximum gross weight 70,000 lbs. ▼ 

4 axles — not to exceed 25,000 lbs. per axle maximum gross weight 78,000 lbs. 

5 axles — wheel base less than 244 inches: 

front 2 axl e s 35,000 lbs. 

rear 3 axles 56,500 lbs. 

Gfess 91,500 lbs. 

5 axles — wheel base more than 2 A 4 inches: 

front 2 axles 37,500 lb s . 

rear 3 axles 57,000 lbs. 

Gfess 9 4 ,500 lbs. 

6 axles — wheel base more than 296 inches: 

2 axle tandem 50,000 lb s . 

3 axle group 57,000 lbs. 

Grews 103,000 lbs. 

*7 axles — extreme wheel base of 44 feet: 

2 axle tandem 4 0,000 lb s . 

3 axle group 57,000 lbs. 

4 axJe group 71,000 lbs. 

Gfess 122,000 lbs. 

*Sevcn axle equipment subject to individual review for approval. — Speed restricted to 4 5 m.p.h. 



2 AXLE VEHICLE 

single/single axle configuration 

more than 8' 50,000 lbs. 

single axle 25,000 lbs. 

3 AXLE VEHICLE 

single/tandem axle configuration 

extreme wheelbase greater than 15' 70,000 lbs, 

single axle 25,000 lbs, 

tandem axle 50,000 lbs. 

4 AXLE VEHICLE 

quad grouping (less than 8^ between 
any two consecutive axles) 

extreme wheelbase greater than 18' 78,000 lbs. 

single axle 20,000 lbs. 

tandem/tandem 

extreme wheelbase greater than 16' but less than 22' 78,000 lbs. 

tandem axle 50,000 lbs. 

extreme wheelbase 22' or greater 90,000 lbs. 

tandem axle 50,000 lbs. 

5 AXLE VEHICLE 

tandem/tri axle configuration 

extreme wheelbase greater than 24' but less than 28' 86,000 lbs. 

tandem axle 37,500 lbs. 

tri axle 60,000 lbs, 

extreme wheelbase 28' or greater 94,500 lbs. 

tandem axle 37,500 lbs. 

tri axle 60,000 lbs, 

tandem/tandem/single axle configuration 

extreme wheelbase 31' or greater 94,500 lbs. 

single axle 15,000 lbs. 



672 8:8 NORTH CAROLINA REGISTER July 15, 1993 



< 



« 



PROPOSED RULES 



tandem axle 50,000 lbs. 

6 AXLE VEHICLE 

tri/tri axle configuration 

extreme wheelbase greater than 29' but less than 34' 100,000 lbs. 

tri axle 60,000 lbs. 

extreme wheelbase 34' or greater 108,000 lbs. 

tri axle 60,000 lbs. 

tandem/tandem/tandem axle configuration 

extreme wheelbase greater than 37' but less than 39' 100,000 lbs, 

tandem axle 50,000 lbs, 

(no two consecutive set of tandems to exceed 90,000 lbs.) 

extreme wheelbase 39' or greater 108,000 lbs. 

tandem axle 50,000 lbs. 

(no two consecutive set of tandems to exceed 90,000 lbs.) 

7 AXLE VEHICLE engineering study 

ALL VARIATIONS OF AXLE CONFIGURATIONS OTHER THAN THOSE LISTED WILL REQUIRE 
INDIVIDUAL ENGINEERING STUDY. 

(3) Scaled Ship Containers Vehicles hauling sealed ship containers may qualify for an overweight 
permit provided : 

(A) Going to or from a designated seaport (to include in state and our of state) and has been or will 
be transported by marine shipment; 

(B) Licensed for maximum allowable weight allowed in G.S. 20-118; 

(C) Vehicle/vehicle combination has at least five axles; 

(D) To have proper documentation (shippers bill of laden and/ or trucking bill of laden) of sealed 
commodity being transported available for enforcement inspection. 

The Department of Transportation shall issue a permit for 80,000 lbs. but not to exceed 94,500 lbs. with up 
to ten designated routes of premitted travel provided all qualifying requirements have been met. 

(c) Overlength permits will be limited as follows: 

(1) Single trip permits are limited to 85' to include towing vehicle. Approval may be given by the 
Central Permit Office for permitted loads in excess of 85' after review of route of travel. 
Provided, mobile/modular Mobile/modular homes may be issued permits not to exceed 95'. 

(2) Annual (blanket) permits will not be issued for lengths to exceed 65'. Front overhang may not 
exceed 3' unless if transported otherwise would create a safety hazard. Provided, mobile/modular 
home permits may be issued for a length not to exceed 91'. 

(d) There are not set limits for permitted height as it is controlled by clearances on designated route. Permit 
will indicate "Check Height on Structures". The issuance of the permit does not imply nor guarantee the 
clearance for the permitted load and all vertical clearances s hould shall be checked by the permittee prior to 
movement underneath. 

(e) Time of The move is to be made between sunrise and sunset Monday through Saturday with no move 
to be made on Sunday^ or approved state holidays. Mobile/modular homes are restricted to travel between 
sunrise and sunset Monday through 12 noon on Saturday. Time restrictions may be determined by the issuing 
office if in the best interest for safety and/or expedite traffic . No movement of permitted vehicle/vehicle 
combination after noon on the day preceding the six holidays of New Years Day, Memorial Day, 
Independence Day, Labor Day, Thanksgiving Day and Christmas Day and no movement until noon on the 
day following the holiday. Continuous travel (24 hr/7 day/365 days a year) is would be authorized for any 
vehicle/vehicle combination up to but not to exceed 94,500 lbs., provided: 

(1) no other over legal dimension of width, height or length is to be included in the permitted move^- 
afld Exception: self-propelled equipment may be authorized for continuous travel with properly 
marked overhang (front and/or rear) not to exceed a total of 10'; and 

(2) the vehicle is licensed for the maximum allowable weight determined by extreme axle measure- 
ments. If the holiday falls on Sunday, the following Monday will be considered the holiday s . 
Time restrictions may be determined by the issuing office if in the best interest for s afety and/or 
to expedite traffic. — Provided, mobile/modular homes arc restricted to travel Monday through 12 
noon on Saturday. 



8:8 NORTH CAROLINA REGISTER July 15, 1993 673 



PROPOSED RULES 



(f) The speed of permitted moves shall be that which is reasonable and prudent for the load, considering 
weight and bulk, under conditions existing at the time; however, the maximum speed shall not exceed the 
posted speed limit. The driver will maintain a safe speed consistent with maintaining proper interval and 
temporarily the traveling public and avoid creating traffic congestion by periodically relinquishing the traffic 
way to allow the passage of following vehicles when a build up of traffic occurs. Provided, seven axle 
self-propelled truck cranes with extreme wheel base of 44 feet shall not exceed a maximum speed of 45 mph. 

(g) Additional safety measures will be required are as follows: 

(1) A yellow (or a color of equal effectiveness) banner measuring 7' x 18" bearing the legend 
"Oversize Load" in 10" black letters witt shall be displayed on the towing unit for all loads in 
excess of 10' wide; 

(2) Red flags measuring 18" square will be displayed on all sides at the widest point of load for all 
loads in excess of 10' wide but the flags shall be so mounted as to not increase the overall width 
of the load; 

(3) A flagman may be required for vehicle/vehicle combinations of loads in excess of 12' in width 
when a speed of 20 miles per hour mph cannot be maintained on level terrainr i 

(4) Rear view mirrors and other safety devices on towing units attached for movement of overwidth 
loads shall be removed or retracted to conform with legal width when unit is not towing/hauling 
such vehicle or load; 

(5) Flashing amber lights will be used as determined by the issuing permit office. 

(h) The object to be transported wttt shall not be loaded or parked, day or night, on the highway right of 
way without specific permission from the office issuing the permit. 

(i) No move wtH shall be made when weather conditions render visibility less than 500' for a person or 
vehicle. Moves witt shall not be made when highway is covered with snow or ice or at any time travel 
conditions are considered unsafe by the Division of Highways, State Highway Patrol or other Law 
Enforcement Officers having jurisdiction. Movement of a mobile/modular 14' unit with an allowable roof 
overhang not to exceed 12" wtH shall be prohibited when wind velocities exceed 25 miles per hour mph in 
gusts. 

(j) All obstructions, including traffic signals, signs, utility lines wtH- shall be removed immediately prior 
to and replaced immediately after the move at the expense of the mover, provided arrangements for and 
approval from the owner is obtained. In no event are trees, shrubs, or official signs to be cut, trimmed or 
removed without personal approval from the district engineer having jurisdiction over the area involved. 

(k) Requirement for The requirement of escort vehicles(s) wtH for permitted loads shall be determined by 
the issuing office and/or the Central Permit Office. 



Authority G.S. 20-119; 136-18(5); Board of Transportation Minutes for February 16, 1977 and November 10, 
1978. 

Ixeason for Proposed Action; 
21 NCAC 20 .0014 - To clarify the amount to be 
paid when registered foresters fail to renew their 
registration. 

21 NCAC 20 .0020-. 0022 - To outline the proce- 
dure for consulting foresters to be certified. 

Comment Procedures; Contact; Deny I L. 
Walden, Vice Chairman, State Board of Registra- 
tion for Foresters , P.O. Box 27393, Raleigh, NC 
27611, Telephone: (919) 733-2162. 

CHAPTER 20 - BOARD OF 

REGISTRATION FOR 

FORESTERS 

.0014 RE-REGISTRATION 



TITLE 21 - OCCUPATIONAL 
LICENSING BOARD 

IVotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. State Board of Registra- 
tion for Foresters intends to amend rule cited as 21 
NCAC 20 .0014 and adopt rules cited as 21 NCAC 
20 . 0020 - . 0022. 

1 he proposed effective date of this action is 
October 1 , 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on August 3, 1993 at 512 N. Salisbury Street , 
10th Floor, Archdale Building, Raleigh, NC 
27604. 



674 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



PROPOSED RULES 



Any registered forester who fails to apply for 
renewal of the registration following its expiration 
may be re-registered by paying the annual renewal 
fee of twenty dollars ($20.00), plus one dollar 
($1.00) per calendar month from the date of 
expiration. Total charges for re-registration shall 
not exceed twenty forty dollars ($20.00) ($40.00) . 
Application for re-registration shall be made by 
formal letter to the Secretary of the Board. 

Statutory Authority G. S. 89B-6; 89B-10. 

.0020 CERTIFICATION OF 

CONSULTING FORESTERS 

The Board will receive affidavits annually from 
each registered forester seeking approval to prac- 
tice as a consulting forester. Each affidavit must 
be on the proper form supplied by the Board and 
submitted by June 30 each year. These affidavits 
will be reviewed by the Secretary-Treasurer, and 
all that clearly meet the requirements will be 
approved by the Secretary-Treasurer. Any appli- 
cations which are questionable or a ppear not to 
meet established criteria will be voted on by the 
Board. 

Statutory Authority G.S. 89B-2; 89B-6. 



01 

13) 



ual as a registered forester as outlined 
in Rule .0016 of this Chapter, 
revocation of certification as a consult- 



ing forester, or 

a warning to the registrant to discontin- 

ue the inappropriate action. 

(c) Complaints alleging violation of G.S. 89B-2 

by individuals who are not registered foresters 

and/or not certified as consulting foresters will be 

acted on by the Board. 

(1) When, in the opinion of the Board, a 
violation exists, a letter will be sent to 
the accused outlining the concern and 
directing that the violation desist. A 
letter of concurrence with this directive 
will be requested from the violating 
party. 
When the violation is considered fla- 



<2> 



grant, or when it continues even after a 
warning by the Board, the Board may 
choose to refer the case to the Attorney 
General recommending legal action 

against the violator. 



Statutory Authority 
150-38. 



G.S. 89B-2: 89B-6; 150B-3: 



.0021 REJECTION OF CONSULTANT 
AFFIDAVIT 

Any applicant whose application to be certified 
as a consulting forester is rejected by the Board 
shall be notified of the rejection and the basis for 
it. The applicant will be encouraged to submit 
additional justification for further consideration by 
the Board, if appropriate. Requests for reconsider- 
ation of the Board's decision must be made in 
writing to the Board. 

Statutory Authority G.S. 89B-2; 89B-6. 

.0022 HANDLING OF COMPLAINTS 

(a) Complaints received by the Board of im prop- 
er, illegal, incompetent or otherwise unethical 
activity or conflict of interest by a registered 
forester will be followed up by written correspon- 
dence to the accused requesting a response to the 
accusation, or by other means deemed appropriate 
by the Board. The Board may choose to request 
the complainant and/or accused registrant to 
personally appear before the Board. 

(b) Following a review of the facts and verifica- 
tion of the violation, the Board will choose appro- 
priate action which may include: 

(1) revocation or suspension of the individ- 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



675 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

7 NCAC 39 .0101 - Purpose 

1 NCA C 39 . 0301 - Exceptions to Minimum Criteria 

Environmental Policy Act 

/ NCAC 25 .0213 - Environmental Policy Act Advisory Committee 

Agency Revised Rule 
1 NCAC 25 .0401 - Method of Compliance 

Agency Revised Rule 
1 NCAC 25 .0506 - Review Process 

Agency Revised Rule 
1 NCAC 25 .0603 - Format and Content 

Agency Revised Rule 

Veterans Affairs 

1 NCAC 26C .0005 - Fee 

Agency Revised Rule 

AGRICULTURE 
Plant Industry 

2 NCAC 48A .0206 - The Transportation of Bees 

Agency Revised Rule 
2 NCA C 48A . 0207 - Requirements for Issuance of Permit 
Agency Revised Rule 

COMMERCE 



RRC Objection 
RRC Objection 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



06/17/93 
06/17/93 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



06/17/93 
06/17/93 



RRC Objection 05/19/93 

Obj. Removed 05/19/93 

RRC Objection 05/19/93 

Obj. Removed 05/19/93 



Cemetery Commission 

4 NCAC 5B .0103 - Hearings 

Agency Revised Rule 
4 NCAC5D .0101 - Report 

Agency Revised Rule 
4 NCAC5D .0201 - Report 

Agency Revised Rule 
4 NCAC5D .0202 - Delivery 

Agency Revised Rule 

Community Assistance 

4 NCAC 19L .0913 - Grant Closeouts 
Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 
04/15/93 



05/19/93 
05/19/93 



676 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



RRC OBJECTIONS 



4 NCAC 19L .1101 - Reporting 

Agency Revised Rule 
4 NCAC 19L .1505 - Preliminary Awards 

Agency Revised Rule 
4 NCAC 19L .1604 - Preliminary Awards 

Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC 16G 0311 - Required Provisions in Plan of Conversion 
Agency Revised Rule 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15 A NCAC 7H . 1205 - Specific Conditions 
Rule Returned to Agency 

Environmental Health 

15A NCAC 18A .0911 - Marinas: Docking Facilities: Other Mooring Areas 

Agency Revised Rule 
15 A NCAC ISA .1601 - Definitions 

Agency Revised Rule 
15 A NCAC 18A .1725 - Water Quality 

Agency Revised Rule 
15A NCAC 18A .2618 - Cleaning of Equipment and Utensils 

Agency Revised Rule 

Environmental Management 

15 A NCAC 2D .0903 - Recordkeeping: Reporting: Monitoring 

Agency Revised Rule 
15A NCAC 2H .1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

Laboratory Services 

15A NCAC 20D .0234 - Criteria & Procedures: Decert. /Denial/Downgrading 
Agency Revised Rule 

Radiation Protection 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 



RRC Objection 03/18/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



RRC Objection 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 



RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 



06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



06/17/93 
06/17/93 
02/18/93 
03/18/93 
05/19/93 
06/17/93 



03/18/93 
04/15/93 



15 A NCAC 11 . 0108 - Additional Requirements RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15 A NCAC 11 .0207 - Issuance of Notice of Registration RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15A NCAC 11 .0212 - Modifications: Revocation: Termination of Registrants RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 

15A NCAC 11 .0214 - Training/Educational Requirements for Equipment Svcs RRC Objection 05/19/93 

Agency Revised Rule Obj. Removed 05/19/93 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



677 



RRC OBJECTIONS 



15 A NCAC 11 .0337 - Issuance of Specific Licenses 

Agency Revised Rule 
15 A NCAC 11 .0507 - Leak Testing and Source Tagging 

Agency Revised Rule 
15 A NCAC 11 .1215 - Conditions of License 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 
05/19/93 



WTP Operators Certification Commission 

15 A NCAC 8A .0102 - Creation RRC Objection 06/17/93 

Agency Repealed Rule Obj. Removed 06/1 7/93 

15 A NCAC 8A .0202 - Duties and Requirements RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0102 - Applying for Examination RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0109 - Requirement for Notification of Change in Address RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15A NCAC 8B .0201 - Grade I Wastewater Treatment Plant Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0205 - Definitions RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8B .0207 - Grade II Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15A NCAC 8B .0208 - Grade III Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCAC 8B .0209 - Grade IV Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

15 A NCAC 8B .0210 - Subsurface System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8B .0211 - Land Application/Residuals Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8B .0212 - Spray Irrigation Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

15A NCA C 8B . 0502 - Refunding of Fees RR C Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/17/93 

15 A NCAC 8C .0002 - Rating Scale/Classification/Wastewater Trtmt Facilities RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

HUMAN RESOURCES 

Children's Services 



10 NCAC 41 E .0514 - Child Care & Development: Health 

Agency Revised Rule 
10 NCAC 41 G .0705 - Medical Program 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 

Agency Responded 

Rule Returned to Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 



04/15/93 
05/19/93 
04/15/93 
04/15/93 
04/15/93 
05/19/93 
06/17/93 



Departmental Rules 



10 NCAC 1M .0002 - Complaints 

Agency Revised Rule 
10 NCAC 1M .0003 - Investigation 



RRC Objection 04/15/93 
Obj. Removed 04/15/93 
RRC Objection 04/15/93 



678 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



RRC OBJECTIONS 



Agency Revised Rule 



Obj. Removed 04/15/93 



Facility Services 

10NCAC 3C .2020 

Agency Revised 
10 NCAC 3C .2021 

Agency Revised 
10 NCAC 3C .2030 

Agency Revised 
10 NCAC 3C .2033 

Agency Revised 
10 NCAC 3H .1150 

Agency Revised 
10 NCAC 3H .1151 

Agency Revised 
10 NCAC 3H .1160 

Agency Revised 
10 NCAC 3H .1163 

Agency Revised 



- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Definitions RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physician Reqs /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Physical Facility Reqs /Inpatient Rehab Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 

- Deemed Status /Inpatient Rehabilitation Facilities or Units RRC Objection 04/15/93 
Rule Obj. Removed 04/15/93 



Mental Health: General 

10 NCAC 14K .0315 - Treatment /Habilitation Planning and Documentation RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

INSURANCE 

Actuarial Services 



11 NCAC 16 .0303 - Annual Filing 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
04/15/93 



Consumer Services 

77 NCAC 4 .0428 - Enforcement 
Agency Revised Rule 
Agency Repealed Rule 

Financial Evaluation Division 

7/ NCAC 11B .0607 - Application - Employers 

Agency Revised Rule 
11 NCAC 11B .0610 - Application - Groups 

Agency Revised Rule 
11 NCAC 11H .0001 - Definitions 

Agency Revised Rule 

JUSTICE 

Private Protective Services 



RRC Objection 03/18/93 
RRC Objection 03/18/93 
Obj. Removed 04/15/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/18/93 
04/15/93 
03/18/93 
04/15/93 
05/19/93 
05/19/93 



12 NCAC 7D .0809 - Authorized Firearms 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



04/15/93 
05/19/93 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



679 



RRC OBJECTIONS 



LICENSING BOARDS AND COMMISSIONS 



Electrolysis Examiners 

21 NCAC 19 .0401 - Infection Control Standards 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



05/19/93 
05/19/93 



Landscape Architects 

21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards 
Agency Repealed Rule 

21 NCAC 26 .0205 - Forms of Practice 

21 NCAC 26 .0207 - Application of Professional Seal 

21 NCAC 26 .0208 - Improper Conduct 

21 NCAC 26 .0209 - Unprofessional Conduct 

21 NCAC 26 .0210 - Dishonest Practice 

21 NCAC 26 .0211 - Incompetence 

21 NCAC 26 .0301 - Examination 



RRC Objection 
Obj. Removed 

RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



06/17/93 
06/17/93 

06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



Medical Examiners 

21 NCAC 32B .0315 - Ten Year Qualification 
Agency Revised Rule 

Real Estate Commission 

21 NCAC 58A .0110 - Broker-in-Charge 

Agency Revised Rule 
21 NCAC 58A .0506 - Salesman to be Supervised by Broker 

Agency Revised Rule 
21 NCAC 58C .0305 - Course Scheduling 

Agency Revised Rule 

REVENUE 

Ad Valorem Tax Division 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/17/93 
06/17/93 



06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



17 NCAC 10 .0506 
17 NCAC 10 .0508 



Certification Requirements for County Appraisers RRC Objection 06/17/93 

Certification Requirements for Private Firm Appraisers RRC Objection 06/17/93 



680 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment , Health, and 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



8:8 NORTH CAROLINA REGISTER July 15, 1993 681 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



t 



\<;kno 



CASE 
NUMBER 



A1,J 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



LMS Express, Inc. v. Administration, Div of Purchase & Contract 
Stauffer Information Systems v. Community Colleges & Administration 
McLaurin Parking Co. v. Administration 



92 DOA 0735 


Morgan 


06/04/93 




92 DOA 0803 


West 


06/10/93 


8:7 NCR 613 


92 DOA 1662 


Morrison 


04/02/93 


8:3 NCR 320 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 



Partnership, Phillip Owen Edward 

Gary Morgan Neugent 

Kirby Ronald Eldridge 

Gloria Black McDuffie 

Lany Isacc Hailstock 

Anthony Ralph Cecehini Jr. 



Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Johnnie L. Baker v. Alcoholic Beverage Control Commission 

RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 

Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 

Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz 

COMMERCE 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0978 


Gray 


05/28/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


Rally 


04/07/93 


92 ABC 1690 


Morgan 


06/29/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0002 


Morrison 


07/02/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 1475 


Nesnow 


03/23/93 



♦ 



Lester Moore v. Weatherization Assistance Program 

CRIME CONTROL AND PUBLIC SAFETY 

George W. Paylor v. Crime Victims Compensation Comm. 
Steven A. Barner v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
Phillip Edward Moore v. Crime Control & Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 

ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 



93 COM 0105 



Gray 



03/08/93 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0453 


Nesnow 


06/01/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


92 CPS 1807 


Morrison 


05/24/93 


93 CPS 0034 


Grav 


05/05/93 


93 CPS 0152 


Nesnow 


04/02/93 


93 CPS 0169 


Nesnow 


05/20/93 


93 CPS 0263 


Morrison 


05/20/93 


93 CPS 0303 


Morrison 


06/08/93 


93 CPS 0351 


Reilly 


05/24/93 



8:3 NCR 327 



Charles L. Wilson v. Environment, Health, &. Natural Resources 
Michael D. Barnes v. Onslow Cty Hlth & Environment and EHR 
William E. Finck v. Environment, Health, & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
Elizabeth City /Pasquotank Cty Mun Airport Auth v. EHNR 
Service Oil Company v. Environment, Health, & Natural Resources 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors, Inc. v. EHNR 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Erby Lamar Grainger v. Environment, Health, & Natural Resources 
Mustafa E. Essa v. Environment, Health, & Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


9 1 EHR 0825 


Morgan 


06/21/93 


92 EHR 0040 


Gray 


06/14/93 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1140 


Gray 


04/13/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1600 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 


93 EHR 0008 


Becton 


03/24/93 


93 EHR 0071 


Reilly 


06/21/93 


93 EHR 0146 


Gray 


03/29/93 



8:1 NCR 83 



t 



682 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



CONTESTED CASE DECISIONS 



> 



AGENCY 



Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County 
O.C. Siafford /Larry Haney v, Montgomery Cty. Health Dept. 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment, Health, & Natural Resources 
Hamilton Beach/Proctor-Silex, Inc. v. Environment, Health, &. Natrl Res 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 EHR 0206 


Nesnow 


05/20/93 


93 EHR 0224 


Gray 


06/07/93 


93 EHR 0299 


Reilly 


06/07/93 


93 EHR 0308 


Becton 


05/18/93 


93 EHR 0477 


Reilly 


06/29/93 



PUBLISHED DECISION 
REGISTER CITATION 



HUMAN RESOURCES 



> 



I 



O.C. Williams v. Human Resources 
Ronald Terry Brown v. Human Resources 
O.C. Williams v. Human Resources 
Michael L. Ray v. Human Resources 
Randy Chambliss v. Human Resources 
Melvin White v. Human Resources 
Jefferson D. Boylen v. Human Resources 
Jeffery D. Williams v. Human Resources 
Samuel E. Massenberg Jr. v. Human Resources 
William A. Dixon v. Human Resources 
Gregory L. Washington v. Human Resources 
Edwin Clarke v. Human Resources 
Dwayne Allen v. Human Resources 
Edwin Ivester v. Human Resources 
Tyrone Aiken v. Human Resources 
Edward E. Brandon v. Human Resources 
Darrell W. Russell v. Human Resources 
John Henry Byrd v. Human Resources 
Michelle D. Mobley v. Human Resources 
Robert E. Watson v. Human Resources 
Byron Christopher Williams v. Human Resources 
James W. Bell v. Human Resources 
Eric Stanley Stokes v. Human Resources 
David Rollins v. Human Resources 
Lyndell Greene v. Human Resources 
Leroy Snuggs v. Human Resources 
James P. Miller HI v. Human Resources 
Larry L. Crowder v. Human Resources 
Carlos Bernard Davis v. Human Resources 
Ocie C. Williams v. Human Resources 
Terrance Freeman v. Human Resources 
Timothy Brian Eller v. Human Resources 
Charles S. Ferrer v. Human Resources 
Ronald H. Lockiey v. Human Resources 
Rene Thomas Rittenhouse v. Human Resources 
Thomas Edward Williamson v. Human Resources 
Roy Chester Robinson v. Human Resources 
Timothy Scott Long v. Human Resources 
William E. Ingram v. Human Resources 
Harold R. Pledger v. Human Resources 
Henry Alston Jr. v. Human Resources 
Michael W. Bentley v. Human Resources 
Dale Robert Stuhre v. Human Resources 
Tommy Malone v. Human Resources 
James C. Dixon Jr. v. Human Resources 
Wallace M. Cooper v. Human Resources 
Jarvis N. Price v. Human Resources 
Thomas L. Yates v. Human Resources 
Robert E. Tarlton Sr. v. Human Resources 
Rodney Devard Clemons v. Human Resources 
James A. Coleman v. Human Resources 
Romeo F. Skapple v. Human Resources 
Jeffrey L. Garrett v. Human Resources 
Edward Kirk v. Human Resources 
William C. Hubbard v. Human Resources 
Edward Fitch v. Human Resources 



91 CSE 0036* 2 


Morgan 


03/30/93 


91 CSE 0249 


Morgan 


05/17/93 


91 CSE 1158* 2 


Morgan 


03/30/93 


91 CSE 1173 


Morgan 


05/17/93 


91 CSE 1187 


Morgan 


04/28/93 


91 CSE 1192 


Morgan 


05/17/93 


91 CSE 1217 


Morgan 


05/17/93 


91 CSE 1231 


Morgan 


04/28/93 


91 CSE 1249 


Morgan 


05/17/93 


91 CSE 1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 1217 


Gray 


06/17/93 


92 CSE 1237 


Gray 


04/16/93 


92 CSE 1249 


Beaton 


04/20/93 


92 CSE 1250 


Reilly 


06/04/93 


92 CSE 1256 


Nesnow 


04/15/93 


92 CSE 1265 


Reilly 


05/06/93 


92 CSE 1270 


Nesnow 


04/26/93 


92 CSE 1311 


Nesnow 


05/10/93 


92 CSE 13 16* 3 


Reilly 


03/25/93 


92 CSE 1334 


Morrison 


05/06/93 


92 CSE 1346 


Nesnow 


04/16/93 


92 CSE 1360 


Morrison 


04/15/93 


92 CSE 1361 


Gray 


04/16/93 


92 CSE 1396 


Reilly 


04/15/93 


92 CSE 1404 


Reilly 


04/15/93 


92 CSE 1405 


Mann 


06/25/93 


92 CSE 1411 


Mann 


06/07/93 


92 CSE 1414 


Reilly 


04/20/93 


92 CSE 1416 


Mann 


04/15/93 


92 CSE 1418 


Nesnow 


04/20/93 


92 CSE 1421 


Nesnow 


04/20/93 


92 CSE 1422 


Reilly 


04/20/93 


92 CSE 1423 


Reilly 


04/15/93 


92 CSE 1445 


Becton 


06/29/93 


92 CSE 1450 


Reilly 


04/15/93 


92 CSE 1455 


Morrison 


05/20/93 


92 CSE 1460 


Becton 


06/29/93 


92 CSE 1512 


Nesnow 


06/09/93 


92 CSE 1516 


Reilly 


05/11/93 


92 CSE 1520 


Mann 


05/07/93 


92 CSE 1522 


Becton 


05/11/93 


92 CSE 1527 


Reilly 


05/11/93 


92 CSE 1531 


Morrison 


05/12/93 


92 CSE 1535 


Gray 


05/10/93 


92 CSE 1536 


Gray 


05/17/93 


92 CSE 1539 


Gray 


05/10/93 


92 CSE 1540 


Reilly 


05/11/93 


92 CSE 1545 


Gray 


04/26/93 


92 CSE 1557 


Gray 


04/22/93 


92 CSE 1560 


Gray 


06/29/93 


92 CSE 1562 


Mann 


05/12/93 


92 CSE 1572 


Reilly 


05/11/93 



Consolidated cases. 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



683 



CONTESTED CASE DECISIONS 



AGENCY 



Brian C. Gilmore v. Human Resources 

Anthony McLaughlin v. Human Resources 

Johnny W. Cooke v. Human Resources 

Isaac Maxwell v. Human Resources 

Donald J. Ray v. Human Resources 

McKinley Clyhurn v. Human Resources 

Jeffery D. Williams v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden v. Human Resources 

William J. Carter v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Patrick Floyd v. Human Resources 

Dennis W. Nolan v. Human Resources 

Ira Alston Jr. v. Human Resources 

Ronald G. Bolden v. Human Resources 

Marvin Holley v. Human Resources 

Michael Tywan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Leon Barbee v. Human Resources 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina, Inc., d/b/a BMA 
of Raeford, Webb-Lohavichan-Melton Rentals, Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayetteville 
d/b/a Fayetteville Kidney Center and Webb-Lohavichan Rentals 
v. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount. Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates, Inc., Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

Fannie Lewis v. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 1576 


Gray 


04/26/93 


92 CSE 1582 


Gray 


06/29/93 


92 CSE 1585 


Becton 


05/11/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 1623 


Morrison 


05/20/93 


92 CSE 1626 


Mann 


05/19/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1633 


Reilly 


03/25/93 


92 CSE 1637 


Nesnow 


05/19/93 


92 CSE 1652* 3 


Reilly 


03/25/93 


92 CSE 1663 


Reilly 


05/20/93 


92 CSE 1670 


Morrison 


06/25/93 


92 CSE 1703 


Becton 


06/16/93 


92 CSE 1706 


Mann 


06/25/93 


92 CSE 1713 


Mann 


06/08/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1779 


Nesnow 


05/13/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1181 


Gray 


05/04/93 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Reilly 


05/05/93 


92 DHR 0658 


Morrison 


04/30/93 


92 DHR 1109** 


Morgan 


06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



92 DHR 1110** Morgan 06/22/93 



92 DHR 11 16** Morgan 06/22/93 



92 DHR 1120 



Gray 



06/18/93 



t 



8:5 NCR 441 



■ A NCR 392 
:8 NCR 687 



8:8 NCR 687 



f 



8:8 NCR 687 



92 DHR 


1145 


Becton 


05/13/93 


8:5 


NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 


NCR 313 


92 DHR 


1275 


Gray 


03/15/93 






92 DHR 


1320 


Morgan 


05/21/93 






92 DHR 


1329 


Chess 


05/10/93 






92 DHR 


1604 


Reilly 


05/10/93 






92 DHR 


1612 


Chess 


03/08/93 






92 DHR 


1613 


Chess 


03/08/93 






92 DHR 


1614 


Chess 


03/09/93 






92 DHR 


1699 


Reilly 


06/07/93 


s 7 


NCR 632 


93 DHR 0010 


Becton 


03/11/93 






93 DHR 0379 


Gray 


06/28/93 







t 



684 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



INSURANCE 

Carolyn M. Hair v. St Employees Comprehensive Major Medical 

JUSTICE 

Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Slds. Comm. 
Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm. 
Jennings Michael Bostic v. Sheriffs* Ed. & Traning Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 
Richard Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. &. Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. & Training Standards Commission 
N.C. Alarm Systems Licensing rid. v. Vivian Darlene Gaither 
William B. Lipscomb v. Private Protective Services Board 

LABOR 

Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKinney v. Labor 

MORTUARY SCIENCE 

Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 

STATE PERSONNEL 

Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Bernie B. Kellly v. Correction 
Brenda G. Mitchell v. Correction 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. White v. Correction 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Renee E. Shepherd v. Winston-Salem State University 
Eva Dockery v. Human Resources 

Lee P. Crosby v. Michael Kelly, William Meyer and EHR 
Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health, & Natural Resources 
James B. Price v. Transportation 
I. Cary Naillingv. UNC-CH 
Deborah Barber v. Correction 
Laverne B. Hill v. Transportation 
Jimmy D. Wilkins v. Transportation 

Sarah W. Britt v. Human Resources, C.A. Dillon School, CPS 
Herman James Goldstein v. UNC-Chapel Hill et al. 
Glinda C. Smith v. Wildlife Resources Commission 
Cindy G. Bartlett v. Correction 

William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 
Larry O. Nobles v. Human Resources 
Willie Thomas Hope v. Transportation 
David Scales v. Correction 

Suzanne Ransley Hill v. Environment, Health, &. Nat. Res. 
Herman James Goldstein v. UNC-Chapel Hill et al. 
John B. Sauls v. Wake County Health Department 



92 INS 1464 



Chess 



03/10/93 



92 DOJ 0656* 7 


West 


06/22/93 


92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 0829 * 7 


West 


06/22/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0202 


Chess 


05/10/93 


93 DOJ 0458 


Morrison 


06/01/93 



92 DOL 0204 
92 DOL 1319 
92 DOL 1333 



92 BMS 1169 



Nesnow 04/15/93 
Morgan 06/17/93 
Morrison 06/21/93 



Reilly 



04/29/93 



88 OSP 0340 Morrison 05/03/93 

90 OSP 1064* 4 Mann 05/04/93 

90 OSP 1065** Mann 05/04/93 

90 OSP 1066* Mann 05/04/93 

90 OSP 1067* 4 Mann 05/04/93 

90 OSP 1068** Mann 05/04/93 



8:4 NCR 396 



91 OSP 0344 


Morrison 


05/27/93 






91 OSP 0625 


West 


03/08/93 


8:1 


NCR 75 


91 OSP 0941 


West 


04/02/93 


8:3 


NCR 306 


91 OSP 0951 


West 


05/07/93 






91 OSP 1236 


Morgan 


04/05/93 






91 OSP 1344* 5 


Chess 


05/20/93 






91 OSP 1391 


Morgan 


04/28/93 






92 OSP 0010 


Chess 


05/03/93 






92 OSP 0056 


Gray 


06/07/93 






92 OSP0188* 5 


Chess 


05/20/93 






92 OSP 0285 


Morrison 


03/10/93 






92 OSP 0313 


Becton 


04/12/93 


S:4 


NCR 382 


92 OSP 0375 


Gray 


04/13/93 






92 OSP 0394 


Becton 


04/20/93 






92 OSP 0396 


Chess 


03/04/93 






92 OSP 0431*" 


West 


03/08/93 






92 OSP 0432* 1 


West 


03/08/93 






92 OSP 0455 


West 


05/26/93 


8:6 


NCR 484 


92 OSP 0634 


Morrison 


05/04/93 






92 OSP 0653 


Morrison 


03/12/93 






92 OSP 0671 


Morgan 


06/08/93 






92 OSP 0684 


Becton 


05/10/93 






92 OSP 0732 


Mann 


04/23/93 






92 OSP 0947 


Morgan 


03/23/93 






92 OSP 0989 


Chess 


06/24/93 






92 OSP 0992 


Reilly 


03/18/93 


8:2 


NCR 224 


92 OSP 1047 


Morrison 


05/04/93 






92 OSP 1142 


Reilly 


03/08/93 


8:1 


NCR 88 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



685 



CONTESTED CASE DECISIONS 



a<;kn( y 



Gilbert Jaeger v. Wake County Alcoholism Treatment Center 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 

Willie L. Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment, Health, & Natural Resources 

James B. Price v. Transportation 

Betty Bradsherv. UNC-CH 

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 

Karen Canter v. Appalachian State University 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 

William G. Fisher v. St Bd of Ed, Albermarle City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 

Michael L. Pegramv. Correction 

Jerry D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Correction 

Michael L. Pegram v. Correction 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


92 OSP 1204 


Reilly 


05/10/93 


92 OSP 1243 


Reilly 


03/05/93 


92 OSP 1468 


Becton 


05/26/93 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1555 


Becton 


05/31/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1733 


Becton 


03/30/93 


92 OSP 1741 


Becton 


03/24/93 


92 OSP 1768 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Becton 


04/19/93 


92 OSP 1796 


Morrison 


05/27/93 


93 OSP 0079 


Reilly 


06/15/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Becton 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Becton 


04/20/93 


93 OSP 0153 


Morgan 


06/03/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 02751* 


Reilly 


06/28/93 


93 OSP 0287 


Gray 


05/17/93 


93 OSP 0383 


Nesnow 


06/07/93 


93 OSP 0472** 


Reilly 


06/28/93 



STATE TREASURER 



Herman D. Brooks v. Bd of Trustees /Teachers' & St Emp Ret Sys 
Henrietta Sandlin v. Teachers' & State Emp Comp Major Medical Plan 
Mary Alyee Carmichael v. Bd /Trustees /Teachers' & St Emp Ret Sys 



91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



TRANSPORTATION 



Yates Construction Co., Inc. v. Transportation 
UNIVERSITY OF NORTH CAROLINA HOSPITALS 

Jacqueline Florence v. UNC Hospitals 



92 DOT 1800 Morgan 03/25/93 



93 UNC 0355 



Becton 



06/16/93 



686 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CUMBERLAND 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 



DIALYSIS CARE OF NORTH CAROLINA INC., 
d/b/a DIALYSIS CARE OF CUMBERLAND 
COUNTY, 

Petitioner, 



N. C. DEPARTMENT OF HUMAN RESOURCES, 
DIVISION OF FACILITY SERVICES, 
CERTD7ICATE OF NEED SECTION, 
Respondent. 

and 

BIO-MEDICAL APPLICATIONS OF 
FAYETTEVDlLE, d/b/a FAYETTEVILLE KIDNEY 
CENTER, WEBB-LOHAVICHAN-MELTON 
RENTALS, BIO-MEDICAL APPLICATIONS OF 
NORTH CAROLINA, INC., d/b/a BMA OF 
RAEFORD AND WEBB-LOHAVICHAN RENTALS, 
Intervenor-Respondent. 



92DHR 1109 
92DHR 1110 



BIO-MEDICAL APPLICATIONS OF NORTH 
CAROLINA, INC., d/b/a BMA OF RAEFORD, 
WEBB-LOHAVICHAN-MELTON RENTALS, 
BIO-MEDICAL APPLICATIONS OF NORTH 
CAROLINA, EMC, d/b/a BMA OF FAYETTEVILLE, 
d/b/a FAYETTEVILLE KIDNEY CENTER AND 
WEBB-LOHAVICHAN RENTALS, 
Petitioners, 



NORTH CAROLINA DEPARTMENT OF HUMAN 
RESOURCES, DmSION OF FACILrrY SERVICES, 
CERTD7ICATE OF NEED SECTION, 
Respondent, 

and 

DIALYSIS CARE OF NORTH CAROLINA, INC. 
d/b/a DIALYSIS CARE OF HOKE COUNTY, 
Intervenor-Respondent. 



92DHR 1116 



RECOMMENDED DECISION 
STATEMENT OF THE CASE 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



687 



CONTESTED CASE DECISIONS 



The above-captioned matters are contested cases, consolidated for the purpose of hearing. Dialysis 
Care of North Carolina, Inc. d/b/a Dialysis Care of Cumberland County ("DCNC") and Bio-Medical 
Applications of North Carolina, Inc. d/b/a BMA of Raeford, Webb-Lohavichan-Melton Rentals, Bio-Medical 
Applications of North Carolina, Inc. d/b/a BMA of Fayetteville d/b/a Fayetteville Kidney Center and Webb- 
Lohavichan Rentals (hereinafter collectively referred to as "BMA") challenge the decision of the North 
Carolina Department of Human Resources, Division of Facility Services, Certificate of Need Section ("CON 
Section" or the "Agency") to award a certificate of need ("CON") to BMA-Fayetteville and DCNC-Hoke and 
to deny BMA-Raeford's and DCNC-Cumberland's application for a CON. 

The undersigned Administrative Law Judge presided at the hearing of this matter on May 12, 13, and 
14, 1993, and June 7, 8, and 9, 1993, in Raleigh, North Carolina. 

APPEARANCES 

The Agency was represented at the hearing by Lauren Murphy Clemmons, Associate Attorney 
General, appearing on behalf of Attorney General Michael F. Easley. DCNC was represented by S. Todd 
Hemphill and Robert W. Kay lor of Bode, Call & Green. BMA was represented by Dean M. Harris and 
Willie O. Dixon, IV of Moore & Van Allen. 

STIPULATIONS 

A. DCNC, BMA and the Agency stipulated to the following prior to hearing: 

1 . It is stipulated that all parties are properly before the court, and that the court has 
jurisdiction of the parties and of the subject matter. 

2. It is stipulated that all parties have been correctly designated, and there is no question 
as to misjoinder or nonjoinder of parties. 

3. It is stipulated that copies of any exhibits may be introduced into evidence in lieu of 
the originals. 

4. BMA of Raeford's application did not conform to regulatory criterion 10 NCAC 3R 
.2213(b)(4) because it did not demonstrate the availability of electric power backup 
capability. If the Administrative Law Judge were to conclude that the agency erred when it 
denied BMA of Raeford's application and recommends that the application be approved, it 
would be necessary for the Administrative Law Judge to condition this recommended 
approval upon BMA's agreement to document the availability of electric power service 
backup prior to the issuance of a certificate of need to BMA of Raeford. 

5. BMA of Raeford's application did not conform to regulatory criterion 10 NCAC 3R 
.2213(b)(2) because it did not contain a written agreement with a transplant center as required 
by this rule. If the Administrative Law Judge were to conclude that the agency erred when 
it denied BMA of Raeford's application and recommends that the application be approved, 
it would be necessary for the Administrative Law Judge to condition the recommended 
approval upon BMA's promise to provide the necessary transplant agreement to the agency 
prior to the issuance of a certificate of need. 

6. DCNC of Cumberland's application did not conform to regulatory criterion 10 
NCAC 3R .2215(12) because it did not contain any documentation from Cumberland County 
Vocational Rehabilitation. If the Administrative Law Judge were to conclude that the agency 
erred when it denied DCNC of Cumberland's application and recommends that the 
application be approved, it would be necessary for the Administrative Law Judge to condition 
this recommended approval upon DCNC of Cumberlands' agreement to document that 



688 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



> 



> 



vocational rehabilitation counseling and services will be available in Cumberland County. 

7. If the Administrative Law Judge were to conclude that the agency erred when it 
denied DCNC of Cumberland's application, and recommends that the application be 
approved, then it is stipulated that the application would be financially feasible. 

8. If the Administrative Law Judge were to conclude that the agency erred when it 
denied BMA of Raeford's application and recommends that the application be approved, then 
it is stipulated that the proposal contained in the BMA of Raeford application would be 
financially feasible. 

9. If the Administrative Law Judge were to conclude that the agency erred when it 
denied DCNC of Cumberland's application and recommends that the application be approved, 
then it is stipulated that upon approval or conditional approval of DCNC of Cumberland, one 
isolation station may be allocated to DCNC of Cumberland and is to be utilized only for that 
purpose. 

10. If the Administrative Law Judge were to conclude that the agency erred when it 
denied BMA of Raeford's application and recommends that the application be approved, then 
it is stipulated that upon approval or conditional approval of BMA of Raeford, one isolation 
station may be allocated to BMA of Raeford and is to be utilized only for that purpose. 

11. It is stipulated that in the Required State Agency Findings, the Agency's findings in 
statutory criterion 13(b) contain a typographical error, in that it indicates that all applicants 
other than BMA Fayetteville were found "NC", or non-conforming. The Agency intended 
the notation to be "NA", meaning that the criterion was not applicable to those applicants. 

12. It is stipulated that the following criteria are not at issue in these contested cases with 
respect to any application: Statutory criteria (3a), (5), (9), (10), (12), (13) and (14). 

B. BMA and the agency stipulated to the following prior to hearing: 

1. With regard to the application of BMA of Raeford, the issues in this contested case 
shall be whether the CON Section exceeded its authority or jurisdiction, acted erroneously, 
failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required 
by law or rule: 

a. When it found that BMA of Raeford's application did not conform, or 
conditionally conform, with G.S. § 13 1E-1 83(a)(3). In addressing this issue, 
BMA of Raeford shall be entitled to introduce evidence of the dialysis 
station need in Robeson County and to argue that the agency erred when it 
concluded that this need was not relevant to criterion (a)(3); and 

b. When it found that BMA of Raeford's application did not conform, or 
conditionally conform, with G.S. §131E-183(a)(4). 

2. BMA of Raeford's application was found nonconforming with the need projections 
in the 1992 State Medical Facilities Plan ("SMFP") under criterion 1, and with G.S. §131E- 
183(a)(6), (12), and (18a) because the agency conditionally approved two other competing 
applications and the 1992 dialysis station allocation for End Stage Renal Dialysis ("ESRD") 
Planning Area 27 was not large enough to allow the approval of BMA of Raeford's 
application in addition to the two approved applications. BMA of Raeford's application 
would conform with the projections in the 1992 SMFP, and with G.S. §131E-183(a)(6), (12), 
and (18a) if one of the other or both of the approved applications had been disapproved. 



8:8 NORTH CAROLINA REGISTER July 15, 1993 689 



CONTESTED CASE DECISIONS 



3. BMA of Raeford's application did not conform to SMFP Policy E.2 under statutory 
criterion 1 and to regulatory criterion 10 NCAC 3R .2213(b)(4) because it did not 
demonstrate the availability of electric power backup capability. If the Administrative Law 
Judge were to conclude that the agency erred when it denied BMA of Raeford's application 
and recommends that the application be approved, it would be necessary for the Administra- 
tive Law Judge to condition this recommended approval upon BMA's agreement to document 
the availability of electric power service backup prior to the issuance of a certificate of need 
to BMA of Raeford. 

4. BMA of Raeford's application did not conform with 10 NCAC 3R .2213(b)(2) 
because it did not contain a written agreement with a transplant center as required by this 
rule. If the Administrative Law Judge were to conclude that the agency erred when it denied 
BMA of Raeford's application and recommends that the application be approved, it would 
be necessary for the Administrative Law Judge to condition the recommended approval upon 
BMA's agreement to provide the necessary transplant agreement to the agency prior to the 
issuance of a certificate of need. 

5. The agency found that BMA of Raeford's application did not conform with 1992 
SMFP Policies A.l and E.8 because it found that BMA of Raeford's application did not 
conform with G.S. §131E-183(a)(3) and (4). Because the issues presented by Policies A.l 
and E.8 in this review are identical to those presented under G.S. §131E-183(a)(3) and (4), 
the parties stipulate that the Administrative Law Judge shall not be required to make separate 
findings and conclusions concerning the agency's findings concerning BMA of Raeford's 
conformity or nonconformity with 1992 SMFP Policies A.l and E.8. 

6. The agency found that BMA of Raeford's application did not conform with 1992 
SMFP Policy A. 3 because it found that the application did not conform with G.S. §131E- 
183(a)(4). Because the issues presented by Policy A. 3 in this review are identical to the 
issues discussed under G.S. §131 E- 183(a)(4), the parties stipulate that the Administrative Law 
Judge shall not be required to make separate findings and conclusions concerning the 
agency's findings concerning BMA of Raeford's conformity or nonconformity with 1992 
SMFP Policy A. 3. 

C. DCNC and the agency stipulated to the following prior to hearing: 

1 . DCNC of Cumberland's application was found nonconforming with the need 
projections in the 1992 SMFP under G.S. §131E-183(a)(l) and with G.S. §13 1E-1 83(a)(6) 
and (18a) because the agency conditionally approved two other competing applications and 
the 1992 dialysis station allocation for ESRD Planning Area 27 was not large enough to allow 
the approval of DCNC of Cumberland's application in addition to the two approved 
applications. DCNC of Cumberland's application would conform with the projections in the 
1992 SMFP, and with G.S. §131E-183(a)(6) and (18a) if one or the other or both of the 
approved applications had been disapproved; 

2. The agency found that DCNC of Cumberland's application did not conform with 
1992 SMFP Policy A. 3 because it found that the application did not conform with G.S. 
§ 1 3 1 E- 1 83(a)(4) . Because the issues presented by Policy A. 3 in this review are identical to 
the issues discussed under G.S. §13 IE- 183(a)(4), the parties stipulate that the Administrative 
Law Judge shall not be required to make separate findings and conclusions concerning the 
agency's findings concerning DCNC of Cumberland's conformity or nonconformity with 
1992 SMFP Policy A. 3. 

OFFICIAL NOTICE 

The undersigned took official notice of the statutory language of N.C.G.S. §131E-183(a)(20) as it 



690 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



existed between 1985 and prior to the 1987 amendment. The pre-amended version stated that: 

The Department shall promulgate rules implementing criteria 
outlined in this sub-section to determine whether an applicant is to be issued 
a certificate for the proposed project. Criteria so implemented are to be 
consistent with federal law and regulations shall cover: 

. . . (20) In the case of existing service or facilities, the quality 
care provided in the past. 

This version of the statute and the 1987 amendment thereto are contained in 1987 N.C. Sess. Laws, 
c. 511, §1 [(later codified at N.C.G.S. §131E-183(a)(20) (effective July 1, 1997)]. 

BURDEN OF PROOF 

The Petitioners have the burden of proof in this contested case. 

ISSUES 
The issues, as set forth in the Notice of Hearing, are as follows: 

1. Whether the Respondent erred in denying Dialysis Care of North Carolina's 
application [in Cumberland County] for a certificate of need for the development of an end 
stage renal disease facility; 

2. Whether the Respondent erred in approving, with conditions, Bio-Medical 
Applications of Fayetteville's application [in Cumberland County] for a certificate of need 
for the addition of end stage renal disease stations; 

3. Whether the Respondent erred in denying Bio-Medical Applications of North 
Carolina's application [in Hoke County] for a certificate of need for the development of end 
stage renal disease stations; 

4. Whether the Respondent erred in approving, with conditions, Dialysis Care of North 
Carolina's application [in Hoke County] for a certificate of need for the establishment of end 
stage renal disease stations. 

The parties raised additional issues in the Prehearing Order as follows: 

A. BMA's Issues with regard to the Cumberland County A pplications . 

1. Whether DCNC's application in Cumberland County misrepresented DCNC's 
mortality rate? 

2. Is so, whether the Agency should have denied DCNC's application in Cumberland 
County for the additional reason that DCNC's application misrepresented DCNC's mortality rate? 

3. Whether the Agency should have denied DCNC's application in Cumberland County 
for the additional reason that DCNC failed to demonstrate that it provided quality care in the past? 

B. BMA's Issues with regard to the Hoke County Applications 

1 . Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 

procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by accepting and reviewing 
DCNC's application in Hoke County without a contemporaneous application by the lessor of the facility or 



8:8 NORTH CAROLINA REGISTER July 15, 1993 691 



CONTESTED CASE DECISIONS 



a joint application by the lessor and lessee, and without payment of the appropriate application fees? 

2. Did DCNC's application in Hoke County misrepresent DCNC's mortality rate? 

3. If so, did the Agency exceed its authority or jurisdiction, act erroneously, fail to use 
proper procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by conditionally 
approving DCNC's Hoke County application which misrepresented DCNC's mortality rate? 

4. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by failing to properly 
consider: 

a. DCNC's record for quality of care; 

b. DCNC's level of support for its proposal; 

c. DCNC's record for recruitment and retention of nephrologists; 

d. DCNC's record for compliance with representations in its CON applications; 
and 

e. DCNC's arrangements for physician coverage and the closed medical staff 
which is described in DCNC's application? 

5. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule in approving DCNC's 
application in Hoke County for the purpose of creating competition, and thereby misinterpret and misapply 
statutory criterion (18a) of the CON Law? 

6. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by relying on county-specific 
need projections rather than the planning area need projection for the Cumberland and Hoke planning area 
as set forth in the 1992 SMFP? 

7. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by refusing to consider the 
need for ESRD stations at BMA's proposed facility in Hoke County to serve ESRD patients living in nearby 
areas of Robeson County? 

8. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule by failing to properly 
consider BMA's user-based methodology in determining the need for ESRD stations at BMA's proposed 
facility in Hoke County? 

9. Did the Agency exceed its authority or jurisdiction, act erroneously, fail to use proper 
procedure, act arbitrarily or capriciously, or fail to act as required by law or rule in making its decision to: 

a. deny the BMA application in Hoke County; or 

b. conditionally approve the DCNC application in Hoke County? 

C. DCNC Issues with regard to its Cumberland County Application 

1 . DCNC contends that the issues in the consolidated contested cases 92 DHR 1 109/10 

are whether the Agency acted improperly and outside its statutory authority, acted erroneously, followed 



692 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



improper procedure, acted arbitrarily or capriciously, or otherwise failed to act as required by law or rule in 
disapproving the Certificate of Need application of DCNC Cumberland, and in approving the Certificate of 
Need application of BMA-Cumberland. 

2. Whether the CON Section improperly relied too heavily on letters of support in 
concluding that the BMA proposal was the most effective alternative to meet the needs of Cumberland County 
residents. 

3. Whether the CON Section improperly concluded that BMA's application represented 
a more effective alternative with regard to coordination with the existing health care system and the availability 
of acute hospital care back-up services. 

4. Whether the CON Section improperly concluded that the BMA application represented 
the most effective alternative with regard to availability of physician manpower and other clinical personnel. 

5. Whether the CON Section improperly evaluated the need in its award of ESRD 
stations in Cumberland County. 

6. Whether the CON Section improperly failed to consider the respective locations of 
the applicants' proposed facilities in considering access to the medically underserved in Cumberland County. 

7. Whether the CON Section improperly evaluated the competitive effect of approving 
the BMA application and disapproving the DCNC application. 

D. The Agency's issues 

1 . The issues presented by 92 DHR 1 109 and 1110 and 92 DHR 1 1 16 are whether the 

Respondent CON Section exceeded its authority or jurisdiction, acted erroneously, failed to use proper 
procedure, acted arbitrarily or capriciously, or failed to use proper procedure, acted arbitrarily or capriciously, 
or failed to act as required by law or rule: 

a. When it conditionally approved the BMA- Fayetteville application (Project 
I.D. #M-4527-92); 

b. When it conditionally approved the Dialysis Care of Hoke County application 
(Project I.D. #N-4566-92). 

FINDINGS OF FACT 

Upon consideration of the evidence presented at the contested case hearing, the undersigned makes 
the following findings of fact: 

I. Background 

1. On or about March 16, 1992, DCNC and BMA each submitted to the Agency applications 
for a CON to develop or expand ESRD facilities in Cumberland and Hoke Counties (Planning Area 27). 

2. On or about March 23, 1992, the Agency determined that the applications were complete for 
the review cycle beginning April 1, 1992. 

3. The Cumberland/Hoke ESRD review was a competitive review because the number of stations 
requested for approval in the applications exceeded the number of stations which the SMFP projected was 
needed for the Cumberland/Hoke Counties planning area. 

4. A competitive review is one in which the approval of one applicant may result in the 



8:8 NORTH CAROLINA REGISTER July 15, 1993 693 



CONTESTED CASE DECISIONS 



disapproval of another applicant. 

5. DCNC proposed in Project I.D. No. M-4567-92 to develop a twelve-station ESRD facility, 
including one isolation station, in Fayetteville, Cumberland County, North Carolina (hereinafter "DCNC- 
Cumberland"). 

6. BMA proposed in Project I.D. No. M-4527-92 to expand its existing ESRD facility in 
Fayetteville, Cumberland County, North Carolina from 39 to 46 stations (hereinafter "BMA-Fayetteville"). 

7. DCNC proposed in Project I.D. No. N-4566-92 to develop a seven-station ESRD facility, 
including one isolation station, in Raeford, Hoke County, North Carolina (hereinafter "DCNC-Hoke"). 

8. BMA proposed in Project I.D. No. N-4533-92 to develop a ten-station ESRD facility, 
including one isolation station, in Raeford, Hoke County, North Carolina (hereinafter "BMA-Raeford"). 

9. A thirty (30) day written comment period is available from the beginning of the review to 
allow applicants, any interested party, or any member of the public, to submit negative or positive written 
comments regarding the applications which are the subject of a review. 

10. Both BMA and DCNC submitted written comments regarding the competing applications. 

11. A public hearing was held on May 7, 1992, by the project analyst, with regard to the 
competing applications in ESRD Planning Area 27. 

12. A public hearing gives the applicant a chance to comment on or rebut written comments 
raised by competing applicants, and allows members of the public to comment on the applications. 

13. The law restricts the applicant to responding to written comments at the public hearing; an 
applicant may not augment its application or offer additional comments on its competitors' applications. 

14. Representatives of DCNC and BMA appeared and offered comments at the public hearing. 

15. By letter dated August 28, 1992, the Agency disapproved the applications of DCNC- 
Cumberland and BMA-Raeford and conditionally approved the applications of DCNC-Hoke to develop a 
seven-station ESRD facility and of BMA-Fayetteville to expand its existing 39-station ESRD facility in 
Fayetteville, North Carolina to 46 stations. 

16. On September 25, 1992, DCNC-Cumberland filed a Petition for Contested Case Hearing with 
the Office of Administrative Hearings, identified as 92 DHR 1109/1110. 

17. ON September 25, 1992, BMA-Raeford filed a Petition for Contested Case Hearing with the 
Office of Administrative Hearings, identified as 92 DHR 1116. 

18. DCNC-Hoke moved to intervene in contested case 92 DHR 1 1 16 on October 22, 1992 and 
was allowed to intervene by the undersigned by order filed February 23, 1993. 

19. BMA-Fayetteville moved to intervene in contested case 92 DHR 1 109/1 1 10 on October 15, 
1992 and was allowed to intervene by the undersigned by order filed February 23, 1993. 

20. The above-referenced contested cases were consolidated by order of Chief Administrative Law 
Judge Julian Mann, III, on April 22, 1993. 

21. At the time of the Agency's review, BMA had 25 ESRD facilities operational in North 
Carolina. 



694 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



22. At the time of the Agency's review, DCNC had 5 ESRD facilities operational in North 
Carolina. One new facility has been opened since the review. 

23. BMA-Fayetteville currently has two satellite ESRD facilities in Clinton and Lumberton, North 
Carolina. The three nephrologists residing in Fayetteville provide physician coverage for patients in 
Fayetteville, Clinton and Lumberton. BMA ESRD patients receive emergency care at Cape Fear Memorial 
Hospital in Fayetteville. 

24. BMA's proposed facility in Raeford also would be a satellite facility of BMA-Fayetteville, 
with physician coverage by the same physicians, and with emergency care provided at Cape Fear Memorial 
Hospital. 

25. DCNC's proposed facility in Raeford would be a satellite of its current facility in Pinehurst, 
with physician coverage provided by Mark Aarons, M.D., the medical director of DCNC-Pinehurst, and 
emergency care provided at Moore Regional Hospital, located in Pinehurst. 

26. Fayetteville and Pinehurst are approximately the same distance from Raeford. 

27. The 1992 State Medical Facilities Plan ("SMFP") contains specific allocations for additional 
or new dialysis stations. 

28. Cumberland and Hoke Counties comprise a multi-county planning area designated as Health 
Services Area ("HSA") V, Planning Area 27. 

29. The 1992 SMFP identifies a total allocation of 17 dialysis stations needed in the 
Cumberland/Hoke two county planning area. 

30. The 17-station allocation for Cumberland/Hoke Counties in Table 10D, p. 108 of the 1992 
SMFP was derived by adding the unmet station need identified in Table 10B, p. 105, for Cumberland and 
Hoke Counties. 

31. The 17-station allocation is the determinative limitation on the number of stations to be 
developed in any given county in the multi-county planning area and in the multi-county planning area as a 
whole. 

32. The CON Section was not obligated to award all 17 stations allocated for the 
Cumberland/Hoke planning area in the 1992 SMFP. 

33. "Table 10B: Projection of Dialysis Patient Population and Estimated Station Need" on page 
105 of the 1992 SMFP identified an unmet station need of 11.85 stations for Cumberland County and 5.57 
stations for Hoke County. 

34. The term "planning horizon" refers to the year in which need projections are made for health 
services or facilities. 

35. With respect to the planning horizon for dialysis stations, the methodology in the 1992 SMFP 
only projects the need for stations through the end of the 1992 calendar year. 

36. In order to meet the need identified for the planning horizon, an applicant must provide 
documentation in its application to show the need for its proposed number of stations by the year in which 
the SMFP projects that the stations will be needed, or in the case of dialysis applications, by the end of the 
first year of operation following completion of the project. 

37. Three BMA patients appeared and testified at the hearing. They were Talmage Ellison of 
Laurinburg, North Carolina, Catherine Purcell of Raeford, North Carolina, and Josephine Bethea of Raeford, 



8:8 NORTH CAROLINA REGISTER July 15, 1993 695 



CONTESTED CASE DECISIONS 



North Carolina. All three patients testified that they received their care at BMA-Fayetteville, that they 
supported the application of BMA-Raeford to build a facility there, and that if BMA-Raeford were to receive 
the certificate of need, they would transfer their care to that facility. 

II. N.C.G.S. §131E-183(a)(l) 

38. N.C.G.S. §131E-183(a)(l) requires that a proposed project be consistent with the applicable 
policies and projections in the SMFP. 

39. Both BMA-Fayetteville and DCNC-Hoke conform with the need projection and policies in 
the SMFP applicable to their proposed projects. 

40. Stipulations B.2, B.3, B.5 and B.6 address BMA-Raeford's nonconformity with the need 
projections and policies in the SMFP. 

41 . Stipulations C. 1 and C.2 address DCNC-Hoke's nonconformity with the need projections and 
policies in the SMFP. 

III. N.C.G.S. §131E-183(a)(3) 

42. N.C.G.S. §13 1E-1 83(a)(3) requires an applicant to identify the population to be served by 
the proposed project and to demonstrate the need that the population has for the proposed service. 

A. Cumberland County Applicants 

43. BMA-Fayetteville conforms with N.C.G.S. §131E-183(a)(3) because it has demonstrated in 
its application the need for a 7-station expansion in a 10 county service area, which includes Cumberland and 
Hoke Counties. 

44. DCNC-Cumberland conforms with N.C.G.S. §13 IE- 183(a)(3) because it has demonstrated 
in its application the need for an 11 -station dialysis facility to serve patients in Cumberland County, its 
proposed service area. 

B. Hoke County Applicants 

45. DCNC-Hoke conforms with N.C.G.S. §1 3 1E-1 83(a)(3) because it has demonstrated the need 
in its application for its proposed 6 maintenance station dialysis facility, exclusive of one isolation station, 
for its proposed service area of Hoke County. 

46. BMA-Raeford does not conform with N.C.G.S. §131E-183(a)(3) for the following reasons: 

a. BMA-Raeford's proposal to develop nine maintenance stations, exclusive of one 
isolation station, exceeds the SMFP identified need for 5.57 stations in Hoke County. 

b. BMA-Raeford's application does not demonstrate a need for its nine proposed 
stations. 

c. The relevant planning horizon for this ESRD review is 1993, the first year of 
operation for the proposed facility. Findings of fact 34, 35, and 36 are incorporated 
herein by reference. 

d. BMA-Raeford only demonstrated a need for seven maintenance stations, not nine 
maintenance stations, within the 1993 planning horizon. 

IV. N.C.G.S. §131E-183(a)(4) 



696 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



47. N.C.G.S. §131E-183(a)(4) requires an applicant to demonstrate that the least costly or most 
effective alternative has been proposed. 

A. Cumberland County Applicants 

48. BMA-Fayetteville is the most effective alternative for a dialysis facility in Cumberland 
County. Findings of fact 49 through 56 are incorporated herein by reference. 

49. In comparison to DCNC-Cumberland County, BMA-Fayetteville demonstrated a higher level 
of community support and better coordination with the existing health care system, as well as better 
availability of acute hospital back-up services. 

50. DCNC-Cumberland County provided two letters of support; the letter from Highsmith Raney 
Hospital was later retracted. 

51. Other than DCNC's official representatives, no one spoke in favor of the DCNC application 
or opposed the BMA-Fayetteville application. 

52. BMA-Fayetteville also demonstrated better arrangements for physician manpower and other 
personnel because BMA-Fayetteville had three nephrologists on staff at the Fayetteville Kidney Center who 
were available to treat patients at the Cumberland County facility. 

53. At least one member of BMA's three nephrologists is "on call" at all times. 

54. The BMA three-doctor nephrology group has seventeen years of experience in nephrology 
and has patient support for continuity of care. 

55. DCNC-Cumberland did not identify a nephrologist to provide services in Cumberland County. 

56. DCNC-Cumberland is not the most effective alternative for a facility in Cumberland County. 
Findings of fact 49 through 55 are incorporated herein by reference. 

B. Hoke County A pplicants 

57. DCNC-Hoke is the most effective alternative for a dialysis station facility in Hoke County. 
Findings of fact 58 through 61(a) and (b) are incorporated herein by reference. 

58. The number of stations which DCNC of Hoke County proposes more closely reflects the 1992 
SMFP unmet station need for Hoke County than does the number of stations which BMA-Raeford proposes 
to develop in Hoke County. Findings of fact 61(a) and (b) are incorporated herein by reference. 

59. DCNC-Hoke identified a nephrologist, Dr. Mark Aarons, who is available to provide services 
to patients in Hoke County. 

60. Approving DCNC-Hoke County will increase the accessibility of ESRD services to Hoke 
County residents. 

61. BMA-Raeford is not the most effective alternative because: 

a. this applicant proposes construction of a facility which will operate three more 
maintenance stations than needed in Hoke County pursuant to the 1992 SMFP; 

b. this applicant is also nonconforming to N.C.G.S. 131E-183(a)(3). Findings of fact 
46(a), (b), (c), (d), are incorporated herein by reference. 



8:8 NORTH CAROLINA REGISTER July 15, 1993 697 



CONTESTED CASE DECISIONS 



62. The Agency customarily does not request clarifying information from an applicant in a 
competitive review after this applications are deemed complete for review. 

63. It was not necessary for the project analyst to request clarifying information from BMA- 
Raeford during the competitive review period. 

V. N.C.G.S. §131E-183(a)(6) 

64. N.C.G.S. §131 E- 1 83 (a)(6) requires an applicant to demonstrate that its proposed project will 
not result in unnecessary duplication of existing or approved health service capabilities or facilities. 

65. Both BMA-Fayetteville and DCNC-Hoke demonstrate conformity to N.C.G.S. § 1 3 1 E- 
183(a)(6) because, based on a competitive analysis of the four proposals in this review, the approval of BMA- 
Fayetteville for 6 maintenance dialysis stations plus one isolation station, and the approval of DCNC-Hoke 
to develop 6 maintenance dialysis stations and one isolation station, best meets the needs of Cumberland and 
Hoke Counties. 

66. The approval of any other applicant would result in the development of dialysis stations in 
excess of the 17 stations allocated in the 1992 SMFP for Cumberland and Hoke Counties. 

67. DCNC of Cumberland County and BMA-Raeford are non-conforming to N.C.G.S. §131 E- 
183(a)(6). Stipulations B.l and C.l are incorporated herein by reference. 

VI. N.C.G.S. 131E-183(a)(7) 

68. N.C.G.S. § 1 3 1 E-l 83(a)(7) requires the applicant to demonstrate the availability of resources, 
including health manpower and management personnel, for the provision of the proposed services, and to 
show that the use of these resources for these services will not preclude the alternative use of these resources 
to fulfill other important needs identified by the SMFP. 

69. Each of the applicants demonstrated the availability of adequate medical and management 
personnel for their respective proposed services. 

70. Each of the applicants conforms to N.C.G.S. § 1 3 1 E- 1 83 (a) ( 7) . 

71. An applicant may be conforming to N.C.G.S. §131E-183(a)(7), but non-conforming to 
N.C.G.S. §131E-183(a)(4), which is a comparative criterion, if the applicant fails to demonstrate that it is the 
most effective alternative under Criterion 4. 

VII. N.C.G.S. §131E-183(a)(8) 

72. N.C.G.S. §13 1E-1 83(a)(8) requires the applicant to demonstrate that it will provide the 
necessary ancillary and support services and that the proposed services will be coordinated with the existing 
health care system. 

73. Each of the applicants demonstrated that its respective project coordinated with the existing 
health care systems in Cumberland and Hoke Counties because each applicant provided sufficient 
documentation of ancillary and support services. 

74. Each of the applicants conforms to N.C.G.S. §131E-183(a)(8). 

VIII. N.C.G.S. §131E-183(a)(18a) 

75. N.C.G.S. § 1 3 1 E- 1 83 (a)( 1 8a) requires an applicant to demonstrate the effects of the proposed 
services on competition in the proposed service area, including how any enhanced competition will have a 



698 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



positive impact on the cost-effectiveness, quality, and access to the services proposed. 

76. In applying this criterion, the analyst looks for the positive impact on the cost-effectiveness, 
quality, and access to services proposed. 

77. Cost-effectiveness is also assessed under N.C.G.S. §131E-183(a)(l) and SMFP policy A.l, 
N.C.G.S. §131E-183(a)(3)and (5). 

78. Quality is also assessed under N.C.G.S. §131E-183(a)(7). 

79. Access is also assessed under N.C.G.S. § 1 3 1 E- 1 83(a) (13). 

80. The analyst assessed cost-effectiveness, quality and access under the criteria referenced in 
findings of fact 77, 78, and 79, as well as under criterion 18(a). 

81. Each application is assessed individually on its merits under N.C.G.S. §131E-183(a)(18a)and, 
in this respect, criterion (18a) is a "stand-alone" criterion. 

82. Criterion (18a) is not a comparative criterion and applicants are not compared to each other 
under this criterion. 

83. The analyst applied N.C.G.S. §131E-183(a)(18a) in the review of the four competing 
applications in this case in accordance with the method described in findings of fact 76 through 82, which are 
incorporated herein by reference. 

84. The approval of both BMA-Fayetteville and DCNC of Hoke County will have a positive 
impact on cost-effectiveness, quality, and access to services for dialysis patients in Cumberland and Hoke 
Counties. 

85. Both BMA-Fayetteville and DCNC-Hoke are conforming to N.C.G.S. §131E-183(a)(18a). 

86. The approval of BMA-Raeford will not have a positive impact on cost-effectiveness. 
Stipulation B.2 is incorporated herein by reference. 

87. BMA-Raeford's application does not conform to N.C.G.S. §131E-183(a)(18a). 

88. The approval of DCNC-Cumberland will not have a positive impact on cost-effectiveness. 
Stipulation C.l is incorporated herein by reference. Therefore, DCNC of Cumberland County's application 
does not conform to N.C.G.S. §131E-183(a)(18a). 

89. At the beginning of this competitive review, the analyst prepared a handwritten internal 
memorandum outlining, in chart format, seven different options for approving applicants. The chart included 
almost every approvable combination of applicants, except the option of approving only one applicant. 

90. The analyst wrote the memorandum in order to conceptualize visually the various approval 
options and to communicate a specific question to the Chief of the CON Section, Lee Hoffman. 

91 . The analyst considered each of the options outlined in the chart during his analysis of the four 
competing applications. 

92. The analyst's decision to approve BMA-Fayetteville and DCNC-Hoke and to disapprove 
DCNC-Cumberland and BMA-Raeford was the product of a reflective review process of the merits of each 
of the applications. 

93. The analyst did not approve DCNC-Hoke for the purpose of creating competition between 



8:8 NORTH CAROLINA REGISTER July 15, 1993 699 



CONTESTED CASE DECISIONS 



DCNC and BMA. 

IX. N.C.G.S. 131E-183(a)(20) 

A. Interpretation of Criterion (20) 

94. N.C.G.S. §131E-183(a)(20) requires an applicant already involved in the provision of health 
services to provide evidence that quality care has been provided in the past. 

95. Hoffman was personally involved in the drafting of N.C.G.S. §131E-183(a)(20), as amended 
in 1987. 

96. The Agency's intent in revising the statute in 1987 was to clarify the fact that the burden was 
on the applicant to demonstrate conformity to the statutory criteria. 

97. The Agency applies N.C.G.S. §131E-183(a)(20)to the existing provider of healthcare services 
in a particular planning area. 

98. Under the version of criterion (20) prior to the 1987 amendment, the Agency applied the 
statute to existing healthcare providers in a planning area. 

99. The Agency's application of criterion (20) as described in finding of fact 97 is consistent with 
the agency's application and interpretation of criterion (20) as this statutory criterion existed prior to the 1987 
amendment. 

100. The Agency consults the Certification Section of the Division of Facility Services, which 
monitors facilities for compliance with federal statutory and regulatory requirements, to determine whether 
a facility has provided quality care in the past. 

101. The analyst applied N.C.G.S. §131E-183(a)(20) in accordance with the agency interpretation 
by applying criterion (20) to BMA-Fayetteville, an existing facility, and by finding that criterion (20) was not 
applicable to BMA-Raeford, DCNC-Hoke, and DCNC-Cumberland, none of which were existing facilities. 

102. BMA-Fayetteville conformed to N.C.G.S. 131E-183(a)(20)becauseno regulatory deficiencies 
were cited by the Certification Section for the BMA-Fayetteville facility for the eighteen months prior to the 
certificate of need review in this case. 

103. DCNC's five facilities received no deficiencies from the Certification Section prior to the 
conclusion of the agency's review in August, 1992. Even if N.C.G.S. §183(a)(20) applied to existing facilities 
statewide, then DCNC would be conforming to criterion (20). 

B. Mortality Rates 

104. BMA did not submit written comments during the 30-day written comment period raising 
allegations regarding DCNC mortality rates, DCNC's record for quality of care, DCNC's record for 
recruitment and retention of nephrologists, or DCNC's record for compliance with representations in its CON 
applications. 

105. The applicant has the responsibility during the written comment period to raise concerns and 
make available to the Agency that information which the applicant believes the Agency should consider during 
its application review process. Findings of fact 9, 10, 12, and 13 are incorporated herein by reference. 

106. The opening date of operation for each of the DCNC facilities in North Carolina was as 
follows: 



700 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



a. DCNC-Eden: April 22, 1988 

b. DCNC-Hamlet: October 11, 1988 

c. DCNC-Pinehurst: November 29, 1990 

d. DCNC-Salisbury: July 31, 1989 

e. DCNC-Charlotte: July 23, 1990 

f. DCNC- Anson: October, 1992 

As of December 31, 1989, the ending population for DCNC's dialysis facilities statewide was 

As of December 31 , 1990, the ending population for DCNC's dialysis facilities statewide was 
As of December 31, 1991, the ending population for each of DCNC's facilities was as 



107. 
53 patients. 

108. 
91 patients. 



109. 



follows: 



110. 

1265 patients. 

111. 
1604 patients. 



a. DCNC-Eden: 40 patients 

b. DCNC-Hamlet: 42 patients 

c. DCNC-Pinehurst: 35 patients 

d. DCNC-Salisbury: 42 patients 

e. DCNC-Charlotte: 13 patients 

f. DCNC-Anson: N/A 

As of December 31, 1989, the ending population for BMA's dialysis facilities statewide was 

As of December 31, 1990, the ending population for BMA's dialysis facilities statewide was 



112. The ending population of BMA-Fayetteville was 188 patients as of December 31, 1989, 212 
patients as of December 31, 1990, and 223 patients as of December 31, 1991. 

113. Mortality rates for ESRD patients may be calculated by different methodologies. 

114. The CON Section does not look at mortality rates in applying N.C.G.S. §13 IE- 183 (a) (20). 

115. Nancy Lew, Director of Health Care Information with National Medical Care, Inc., the parent 
corporation of BMA, testified that her method of calculating mortality was to take the patient population of 
a facility at the beginning of the year; add to that the patient population at the end of the year; divide that 
number by two, to obtain the average population over the year; and then divide that number into the number 
of deaths which occurred over the course of the year. 

1 16. The method for calculating mortality in DCNC's application was to take the total number of 
patients treated during a given calendar year and divide this total number into the number of deaths during 
the course of the calendar year. The Agency has also used this method. 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



701 



CONTESTED CASE DECISIONS 



117. Lew determined that the 12% mortality rate in DCNC's application underrepresented the 
mortality rate because the denominator was overinflated. 

118. Statistics regarding mortality rates can be skewed for facilities with smaller populations, and 
can stabilize as the populations increase. 

1 19. Mortality rates tend to improve as medical staff at a facility gain experience. 

120. In 1990, Dialysis Care's corporate-wide mortality rate, based upon Lew's method of 
calculating mortality, was 41.9 percent. 

121. National Medical Care, Inc. has had facilities with mortality rates in excess of 30 and 40 
percent. 

122. Pursuant to the Agency's methodology, the mortality rates statewide in 1991 for North 
Carolina BMA and DCNC facilities were within one percent of the 19.9% average mortality rate for all 
facilities in the state in 1991. 

123. ESRD patients in nursing homes often have advanced stages of disease and advanced age, and 
both conditions tend to increase the mortality rates of patients. 

124. DCNC's Hamlet dialysis facility is located on the campus of a nursing home. 

125. A facility's mortality rates may be some indication of quality of care, but these rates are not 
dispositive or conclusive of quality of care because mortality rates may be calculated using different 
methodologies and because many factors affect mortality rates. 

126. There is not a uniform or national standard pursuant to which the CON Section may measure 
whether a particular mortality rate at a facility is a barometer of good or poor quality of care. 

127. Prior to September 1992, the agency historically had difficulty obtaining and was unable to 
obtain facility-specific mortality date. 

128. The agency is not required to consider mortality rates under N.C.G.S. §131E-183(a)(20). 

X. Prior Delays of DCNC 

129. The CON Section monitors an approved applicant's project following the issuance of a 
certificate of need. 

130. The CON Section does not assume that an applicant's past difficulties or delays in a prior 
project will affect an applicant's project currently under review. 

131. Some DCNC facilities were not operational within the time period projected in their 
applications due to delays in recruiting nephrologists. Findings of fact 104 and 105 are incorporated hereby 
by reference. 

132. Jonna Honeycutt, Corporate Administrator of DCNC, and Anne Cobb, Area Administrator 
for BMA, each testified that it is not unusual for delays to occur in the implementation of ESRD facilities 
receiving certificates of need. 

133. The evidence in the record does not show that any past delays at DCNC facilities will affect 
DCNC's proposed project in Hoke County. 

XI. Lessor/lessee arrangements 



702 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



134. Generally, the entity named as the lessor and the entity named as the lessee pay the 
application fee required upon submission of a CON application. 

135. A lessor does not have to pay an application fee when the lessor is leasing office space to the 
applicant-lessee and is not incurring capital expenses to develop the facility, does not have a financial interest 
in the profits of the facility, and has no involvement in the provision of the proposed health service. 

136. The lease arrangement between DCNC and Steven A. Connell, the lessor, constitutes a lease 
of the building. 

137. Connell has no financial interest in the new institutional health service and no involvement 
in the provision of the health service offered by DCNC-Hoke. 

138. DCNC will incur all capital expenses of developing, or upfitting the facility, and will retain 
all financial interests and all involvement in the operation of its proposed ESRD facility. 

139. Connell, as lessor, is not required to join in DCNC-Hoke's application or submit a filing fee 
to the CON Section. 

XII. Service to Cumberland County ESRD Patients 

140. The only circumstance under which the BMA-Raeford application for nine dialysis 
maintenance stations (three in excess of the identified SMFP need in Hoke County) could have been approved 
in conjunction with the BMA-Fayetteville application for six maintenance stations (five less than the identified 
SMFP need in Cumberland County) is if the BMA-Raeford applicant had proposed to serve Cumberland 
County patients. 

141. BMA-Raeford did not propose to serve Cumberland County patients in its proposed nine 
station Hoke facility. 

XIII. Downsizing 

142. BMA-Raeford's demonstration of financial feasibility under N.C.G.S. 131E-183(a)(5)isbased 
on an application to construct a nine maintenance station dialysis facility. 

143. The proposed BMA-Raeford facility would have to be downsized from nine maintenance 
stations to six maintenance stations in order to conform to the need identified in the SMFP for Hoke County 
and to be approved. 

144. "Downsizing" is an approval option pursuant to which the Agency may reduce the number 
of stations proposed by an applicant and award the approved applicant a fewer number of stations. 

145. The project analyst has downsized ESRD projects in the past, but never by more than one 
or two stations. 

146. There is no Agency precedent for downsizing an ESRD facility by three stations. 

147. The project analyst has only downsized existing ESRD facilities proposing expansion or 
relocation; the analyst has never downsized a proposed new ESRD facility. 

148. BMA has offered no evidence that its proposed nine station Raeford facility would be 
financially feasible if downsized to the 5.57 stations, or 6 stations, identified as needed in the SMFP for Hoke 
County. 



8:8 NORTH CAROLINA REGISTER July 15, 1993 703 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

Based on the foregoing findings of fact, the undersigned Administrative Law Judge hereby makes the 
following Conclusions of Law: 

1. The application of BMA-Fayetteville is consistent with all applicable plans, standards, and 
criteria, subject only to the conditions set forth in the Agency's initial decision to conditionally approve that 
application. 

2. In making its initial decision to approve the application of BMA-Fayetteville, the Agency did 
not exceed its authority or jurisdiction, act erroneously, fail to use proper procedure, act arbitrarily or 
capriciously, or fail to act as required by law or rule. 

3. The application of DCNC-Cumberland is not consistent with all applicable plans, standards. 
and criteria. 

4. In making its initial decision to disapprove the application of DCNC-Cumberland, the Agency 
did not exceed its authority or jurisdiction, act erroneously, fail to use proper procedure, act arbitrarily or 
capriciously, or fail to act as required by law or rule. 

5. The application of DCNC-Hoke is consistent with all applicable plans, standards and criteria, 
subject only to the conditions set forth in the Agency's initial decision to conditionally approve that 
application. 

6. In making its initial decision to approve the application of DCNC-Hoke, the Agency did not 
exceed its authority or jurisdiction, act erroneously, fail to use proper procedure, act arbitrarily or 
capriciously, or fail to act as required by law or rule. 



The application of BMA-Raeford is not consistent with all applicable plans, standards and 



criteria. 



8. In making its initial decision to disapprove the application of BMA-Raeford, the Agency did 
not exceed its authority or jurisdiction, act erroneously, fail to use proper procedure, act arbitrarily or 
capriciously, or fail to act as required by law or rule. 

9. The Agency properly applied N.C.G.S. §131E-183(a)(20) in this competitive review. The 
Agency did not err as a matter of law in its interpretation and application of N.C.G.S. §131 E- 183(a)(2) to 
existing health care facilities, as opposed to an applicant's facilities statewide, nor in its reliance on the 
Certification Section, nor in its failure to consider mortality rates. Assuming, arguendo , that if the Agency 
had erred in interpreting this statute as applying only to existing facilities, DCNC statewide had no deficiencies 
and would be conforming to criterion 20. The Agency may, but is not required as a matter of law, to 
consider mortality rates as a barometer of quality of care under N.C.G.S. §131E-183(a)(20). 

10. The Agency did not err, fail to use proper procedure, or act arbitrarily and capriciously in 
approving DCNC-Hoke and disapproving BMA-Raeford by failing to evaluate DCNC's record of past delays 
or by failing to request clarifying information from BMA with regard to its Raeford application. 

11. The Agency did not err as a matter of law in its interpretation and application of N.C.G.S. 
§131E-183(a)(18a). 

12. The Agency's initial decision to disapprove the application of BMA-Raeford, and to approve 
BMA-Fayetteville and DCNC-Hoke is not unlawful because the Agency did not make its decision for the 
purpose of increasing or creating competition between DCNC and BMA. 

13. The Agency did not exceed its authority and jurisdiction, act erroneously, fail to use proper 



704 8:8 NORTH CAROLINA REGISTER July 15, 1993 



CONTESTED CASE DECISIONS 



procedure, act arbitrarily and capriciously, or fail to act as required by law by reviewing DCNC-Hoke's 
application without a contemporaneous application and fee payment from the lessor of the proposed Hoke 
facility. 

14. The Agency properly interpreted and properly relied on the 1992 SMFP county-specific need 
projections and the 1992 SMFP planning area need projection for the Cumberland/Hoke planning area and 
therefore did not exceed its authority and jurisdiction, act erroneously, fail to use proper procedure, act 
arbitrarily or capriciously or fail to act as required by law. 

15. BMA-Raeford's application cannot be approved in conjunction with BMA-Fayetteville's 
application as a matter of law because BMA-Raeford does not propose to serve Cumberland County patients. 

16. Based on the evidence in the record, or lack thereof, BMA-Raeford's application cannot be 
downsized to meet the 1992 SMFP identified need in Hoke County. 

RECOMMENDATION 

Pursuant to the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that: 

1. The initial decision by the CON Section to award a CON to BMA to expand its existing 
ESRD facility in Fayetteville should be affirmed, and a CON should be awarded to BMA for that project, 
subject to the conditions set forth in the Agency's initial decision to conditionally approve that application; 

2. The initial decision by the CON Section to deny BMA's application for a CON to develop 
a 10-station ESRD facility in Hoke County should be affirmed; 

3. The initial decision by the CON Section to deny DCNC's application for a CON to develop 
a 12-station ESRD facility in Fayetteville should be affirmed; and 

4. The initial decision by the CON Section to award a CON to DCNC to develop a 7-station 
ESRD facility in Raeford should be affirmed, and a CON should be awarded to DCNC for that project, 
subject to the conditions set forth in the Agency's initial decision to conditionally approve that application. 

ORDER 

It is hereby ordered that the Agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with North Carolina 
General Statute §150B-36(b). 

NOTICE 

The Agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
Agency who will make the final decision. G.S. §150B-36(a). 

The agency is required by G.S. §150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearing . 

The Agency that will make the final decision in this contested case is the North Carolina Department 
of Human Resources. 



This the 22nd day of June, 1993. 



Michael Rivers Morgan 
Administrative Law Judge 



8:8 NORTH CAROLINA REGISTER July 15, 1993 705 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code fNCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


: 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


S 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


\9 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


*21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


:: 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






" Reserved " 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


o2 






Social Work 


63 






Speech & Language Pathologists & Audiologists 


64 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



706 



8:8 



NORTH CAROLINA REGISTER 



July 15, 1993 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

N.C. State Fair, 506 
Plant Industry, 513 
Veterinary Division, 515 

COMMERCE 

Alcoholic Beverage Control Commission, 408 

Banking Commission, 408 

Savings Institutions Division: Savings Institutions Commission, 461 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571 

Departmental Rules, 465 

Environmental Management, 210, 556, 658 

Health Services, 283, 335, 425, 465, 572 

Marine Fisheries, 28, 568 

Soil and Water Conservation, 214 

Wildlife Resources Commission, 32, 663 

Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641 



8:8 NORTH CAROLINA REGISTER July 15, 1993 707 



CUMULATIVE INDEX 



HUMAN RESOURCES 

Deaf and Hard of Hearing, Services for the, 650 

Facility Services, 94 

Medical Assistance, 25, 414, 553 

Medical Care Commission, 644 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516 

Social Services Commission, 237 

INSURANCE 

Actuarial Services, 555, 657 
Medical Database Commission, 463 

JUSTICE 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Foresters, Registration for, 674 

Geologists, Board of, 285 

Medical Examiners, Board of, 591 

Mortuary Science, Board of, 45, 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Real Estate Commission, 53, 364 

Social Work. Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286 

STATE TREASURER 

Retirement Systems, 337 

TAX REVIEW BOARD 

Orders of Tax Review, 503 

TRANSPORTATION 

Highways, Division of, 669 



♦ 



♦ 



# 



708 8:8 NORTH CAROLINA REGISTER July 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 1 5 ,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750.00). Individual volumes may also be purchased with 
supplement service. Renewal subscriptions for supplements to the initial publication are available at 
one-half the new subscription price. 



PRICE LIST FOR THE SUBSCRIPTION YEAR 



Volume 


Title 


Chapter 


New Total 
Subject Subscription* Quantity Price 


1 - 53 


Full Code 
1 

2 

2 

3 

4 

4 

5 

5 

6 

7 

8 

9 
10 
10 
10 

10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
11 
12 
13 
13 
13 
14A 

15A 
15A 
15A 
15A 
15A 


1 - 38 
1 - 24 
25 -52 
1 -4 
1 - 2 
3 - 20 
1 -2 
3 -4 
1 -4 
1 - 12 
1 - 9 
1 -4 

I - 2 
3A - 3K 
3L- 3R 

3S - 3W 
4-6 

7 

8 -9 
10 

II - 14 
15 - 17 
18 

19 - 30 
31 - 33 
34 -41 
42 

43 -51 
1 - 19 
1 - 12 
1 - 6 
7 

8 - 16 
1 - 11 

1 - 2 
3 -6 
7 

8 - 9 
10 


All titles 
Administration 
Agriculture 
Agriculture 
Auditor 

ECD (includes ABC) 
ECD 

Correction 
Correction 
Council of State 
Cultural Resources 
Elections 

Governor/Lt. Governor 
Human Resources 
Human Resources 
Human Resources 
(includes CON) 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Insurance 
Justice 
Labor 
OSHA 
Labor 

Crime Control and 
Public Safety 
EHNR (includes EMC) 
EHNR 

Coastal Management 
EHNR 
Wildlife 


$750.00 




1 


90.00 




2 


75.00 




3 


75.00 




4 


10.00 




5 


45.00 




6 


90.00 




7 


60.00 




8 


30.00 




9 


60.00 




10 


10.00 




11 


45.00 




12 


30.00 




13 


90.00 




14 


45.00 




15 


30.00 




16 


30.00 




17 


30.00 




18 


30.00 




19 


30.00 




20 


60.00 




21 


45.00 




22 


75.00 




23 


90.00 




24 


30.00 




25 


60.00 




26 


45.00 




27 


90.00 




28 


90.00 




29 


90.00 




30 


30.00 




31 


45.00 




32 


45.00 




33 


45.00 




34 


90.00 




35 


45.00 




36 


45.00 




37 


30.00 




38 


45.00 








Continued 



Volume 


Title 


Chapter 


New 
Subject Subscription* 


Quantity 


Total 
Price 


39 


15A 

15A 

16 

17 

17 

18 

19A 

20 

21 

21 

21 

22 

23 

24 

25 

26 


11-18 EHNR 90.00 
19-26 EHNR 

(includes Breathalizer) 75.00 
1 - 6 Education 30.00 
1 - 6 Revenue 75.00 
7-11 Revenue 60.00 
1 - 8 Secretary of State 30.00 
1 - 6 Transportation 90.00 
1 - 9 Treasurer 45.00 
1-16 Licensing Boards 75.00 
17-37 Licensing Boards 75.00 
38 - 70 Licensing Boards 
1 - 2 Administrative Procedures 75.00 
1 - 2 Community Colleges 10.00 
1 - 3 Independent Agencies 10.00 
1 State Personnel 60.00 
1 - 4 Administrative Hearings 10.00 

Subtotal 

(North Carolina subscribers add 6% sales tax) 

Total 






40 






41 






42 






43 






44 






45 






46 






47 






48 






44 






50 






51 






52 






53 





















i 



(Make checks payable to Office of Administrative Hearings.) 



This price includes the title in its current form plus supplementation for the subscription year. 



I 



MAIL TO: 



OFFICE OF ADMINISTRATIVE HEARINGS 

POST OFFICE DRAWER 27447 
RALEIGH, NORTH CAROLINA 27611-7447 



I 



> 



LPPL-W9LZ BUH0JB3 quoN 'qSiaiBtf 
LVVLl J3^BJa O d 

sSuueaH aAijeajsiuiuipv jo a^UJO 



hh3h 

dWVIS 

aavid 



► 



FOLD HERE 



> 



NORTH CAROLINA REGISTER 
ORDER FORM 



□ Please enter my subscription for the North Carolina Register to start with the issue. 

($105.00)/year subscription) (N.C. Subscribers please add sales tax.) 

□ Renew North Carolina Register 

□ Check Enclosed □ Please bill me 

Please make checks payable to Office of Administrative Hearings 

NAME ADDRESS 

CITY STATE ZIP 

PHONE 



(Return to Office of Administrative Hearings - fold at line, staple at bottom and affix postage. 



CHANGE OF ADDRESS: 



1. Present Address 



NAME 



ADDRESS 



CITY 



STATE 



ZIP 



2. New Address 



NAME 



ADDRESS 



CITY 



STATE 



ZIP 



Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 







■Vi \ 



' 






HMETt 



FIRST CLASS MAIL 



585 
UNIV. OF NORTH CAROLINA 
LAU LIBRARY CB8 3385 
UAN HECKE-WETTACH 064-A 
CHAPEL HILL 



NC 27599